Union of Clerical, Administrative and Supervisory Employees and Others v Industrial Disputes Tribunal & Anpr

JurisdictionJamaica
CourtSupreme Court
JudgeAnderson K. J.,Hon. K. Anderson, J.
Judgment Date31 May 2013
Neutral Citation[2013] JMSC Civ 80
Docket NumberCLAIM NO. 2010HCV04371

[2013] JMSC Civ 80

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2010HCV04371

Between:
Union of Clerical, Administrative and Supervisory Employees, National Workers Union, Bustamante Industrial Trade Union (“The Unions”)
Claimants/Applicants
and
The Industrial Disputes Tribunal
First Respondent

and

Jamaica Public Service Co. Ltd
Second Respondent

Anthony Gifford , QC and Emily Crooks , instructed by Gifford, Thompson, Bright & Co. for the Claimants/Applicants

Lisa White and Gail Mitchell , instructed by the Director of State Proceedings for the First Respondent (Tanya Ralph — observing proceedings on behalf of First Respondent)

Patrick Foster QC and Symone Mayhew , instructed by Nunes, Scholefield, DeLeon & Co. for the Second Respondent

Judicial Review — Error of law — Whether error of law need be “on face of record”— Inferior tribunal and presumption of regularity — Failure of majority members of inferior tribunal to provide fulsome reasons for award made — Interpretation of contractual agreement — Parties' discussions during contractual negotiations — Parties' expressions of understanding of draft agreement as expressed during contractual negotiations — Parties' expressions of respective interpretations of contractual agreement after agreement reached — Implied terms — Reference to custom and practice in interpretation of contracts.

Anderson K. J.
1

In this claim, the claimants, pursuant to leave granted by Mr. Justice Glen Brown on October 8, 2010, seek the following reliefs:

1
    An Order of Certiorari to remove into this Honourable Court for the purpose of it being quashed, the award made by the First Respondent on June 18, 2010, that: a. The unions' claim for the adjustment of overtime and redundancy payments to the workers arising out of the recent Job Evaluation/Classification Exercise undertaken by Trevor Hamilton & Associates & Focal Point Consulting Limited, has not been accepted; and b. The Tribunal accepts that the company has established its claim that the payment of $2.3 billion represented a negotiated settlement encompassing the unions' claim arising from the Agreement reached between the parties at the Ministry of Labour and Social Security on May 6, 2008. 2. A Declaration that on the true construction of the Heads of Agreement made between the claimants and the second respondent, dated May 6, 2008, the second respondent was obliged to pay their employees sums representing adjustments in relation to overtime and redundancy payments arising from the increases to employees' basic pay which were agreed under the said Heads of Agreement. 3. An Order of Mandamus directed to the first respondent to settle the dispute between the claimants and the first respondent by upholding the claimants' claim for the adjustment of overtime and redundancy payments arising out of the Job Evaluation/Classification Exercise. 4. Such further or other relief as may be just. 5. Costs.
2

The grounds on which the claimants seek the said relief are:

1
    The majority members of the first respondent erred in law in holding that the Heads of Agreement dated May 6, 2008 represented a compromise in full and final settlement of the second respondent's liability to its employees; and in not holding that on a true construction of the said Heads of Agreement, it represented a compromise of the amount due arising out of the Job Evaluation and Classification Exercise, which related to basic pay only. 2. The majority members of the first respondent erred in law in not holding that (as the minority member correctly held) it was an implied term of the contracts of employment between the second respondent and its employees, that after any retroactive increase in basic pay, there would be a corresponding retroactive increase in the amount paid in respect of overtime and redundancy. Such a term was implied by law. a. By reason of the custom and practice between the parties as put in evidence and not challenged. b. In order to achieve fairness as between employees who worked overtime and those who did not work overtime. 3. The majority members of the first respondent erred in law in not holding that payments in relation to overtime and redundancy were an “attendant cost associated with the classification exercise” which the second respondent was obliged to honour under Clause 3 of the Heads of Agreement. 4. The first respondent erred in law in not making any finding of fact in relation to the following evidence which was disputed namely: i. That during the negotiations Honourable Dwight Nelson had clarified in the presence of the Parties' representatives that it was not necessary to spell out overtime and redundancy adjustments as an “attendant cost,” since it was expected that on a change of basic pay, overtime and redundancy payments would have to be recalculated. ii. That Mr. Robert Harris on behalf of the claimants specifically asked Mr. Gary Osborne on behalf of the second respondent when the overtime component would be paid and that Mr. Osborne, after leaving the room and returning, said “by mid-June.” This evidence, if found to be facts by the first respondent, would have confirmed that the parties intended the settlement to relate to basic pay only, with overtime and redundancy adjustments being an attendant cost which the second respondent was obliged to pay. 5. The first respondent erred in law in not holding that since the second respondent paid out the sum of $2.3 billon by apportioning it among the employees pro rata to their basic pay, and not pro rata to their basic pay plus overtime, the second respondent by its own actions were shown to have intended that the settlement was in respect of basic pay and not basic pay plus overtime.
3

The claimants rely on the affidavit evidence of Naval Clarke, as sworn to on September 8, 2010 and exhibits attached thereto. The respondents have filed no affidavit evidence in response. The affidavit evidence of Mr. Clarke which is being relied on by the claimants, it should be noted, is the same affidavit that was filed in support of the then intended claimants' application for leave to apply for judicial review. To the extent that this affidavit evidence relates to matters of fact only, there exists no dispute between the parties and thus, this court can and will take judicial notice of and accept the factual contents of that affidavit for the purposes of this claim, not withstanding that such affidavit was not filed, as would ordinarily have been the case, either simultaneously with the Fixed Date Claim Form (FDCF) or at least sometime prior to the first hearing of the FDCF. The filing of an affidavit in support of FDCF and the requirement for such affidavit to contain certain particulars is a mandatory requirement, by virtue of the provisions of Rule 56.9(2) and (3) of the Civil Procedure Rules (CPR). Nonetheless, the respondents have not made this an issue and understandably so, since insofar as this court can discern, there exists no dispute as to matters of fact deponed to in Mr. Clarke's affidavit. It should be noted though, that in paragraph 19 of his affidavit evidence, the deponent — Mr. Clarke, deponed to having been advised by his attorneys-at-law that, “the majority of the Industrial Disputes Tribunal (I.D.T.) made errors of law as set out in the Notice of Application for Court Orders filed on behalf of the unions, and that the only proper and lawful decision should have been that the unions' claim for the adjustment of overtime and redundancy payments to the workers was upheld.” In that paragraph of his affidavit, it is very clear that the deponent is deponing to a matter of law, rather than of fact, as he should have restricted himself to. In the circumstances, this court will not take into account the contents of paragraph 19 of the claimants' affidavit, for the purpose of rendering its judgment herein.

4

The court dispute between the parties herein, has arisen out of an award made by the I.D.T. on June 18, 2010, in respect of an “industrial dispute” (as this term is defined in Section 2 of the Labour Relations and Industrial Disputes Act, between the claimants and the second respondent. The claimants are four registered trade unions who have bargaining rights on behalf of their members, who are employed by the second respondent.

5

The centrepiece of this claim is an agreement signed between the claimants and second respondent on May 6, 2008. That agreement was witnessed by the then Minister of Labour and Social Security — Honourable Pearnel Charles and also by the then minister responsible for Public Service, in the Ministry of Finance & Planning — Honourable Dwight Nelson. That agreement stated as follows:

  • “1. Arising out of the Job Evaluation and Classification Exercise and Computation by Trevor Hamilton & Associates and Focal Point Consulting Ltd., there will be a net payment of $2.3 billion for the period 2001-2007.

  • 2. Statutory deductions associated with this exercise shall be the responsibility of the company.

  • 3. Any attendant cost associated with the Classification Exercise (e.g. anomalies) will be honoured by the company.

  • 4. The company and the unions accept the new compensation structures in keeping with the Award of Industrial Disputes Tribunal of August 29, 2003, Ref. No. I.D.T. 3/2003.

  • 5. Schedule of Activities for completion of exercise:

    • • Friday, May 9, 2008 — Company to supply reviewed reports to Consultants.

    • • Friday, May 16, 2008 — Consultants to return revised reports to company for distribution to Oversight Committee.

    • • Monday, May 20, 2008 — Reviewed reports from Oversight Committee to company.

  • 6. All payments arising out of the payout of $2.3 billion will be made by May 30, 2008 and June 30, 2008 for current and former employees respectively.”

6

It is important at this juncture to note that the aforementioned agreement...

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