United Management Services Ltd v The Industrial Disputes Tribunal
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Sinclair-Haynes JA,D Fraser JA |
| Judgment Date | 08 April 2022 |
| Neutral Citation | JM 2022 CA 048 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 49/2016 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Civ 14
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mr Justice Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO 49/2016
IN THE COURT OF APPEAL
Miss Stephanie Williams instructed by Henlin Gibson Henlin for the appellant
Ms Althea Jarrett instructed by the Director of State Proceedings for the respondents
I have read, in draft, the judgment of Sinclair-Haynes JA. I agree with her reasoning and conclusion. I also agree that, because of their failure to provide full written submissions, the respondents should not have full costs of the appeal. As has been explained by my learned sister, the respondents did not file written submissions because the appellant did not serve them with written submissions. Whereas the appellant had filed skeleton submissions, there was no advance indication to the court as to the respondents' stance in response to the appeal. The court was obliged, in the circumstances, to rely on only oral submissions on behalf of the respondents.
Miss Natasha Simpson was employed to United Management Services Limited (‘the appellant’), under a fixed-term contract dated 11 July 2011. Her employment was terminated with immediate effect on 16 January 2012. Citing breaches of the rules of natural justice, Mr Howard Duncan, an industrial relations consultant, by letter dated 1 March 2012, requested the appellant to reinstate Miss Simpson, within five days. She was, however, not reinstated.
Mr Duncan consequently, wrote to the Ministry of Labour and Social Security (‘the Ministry’), the 2 nd respondent, requesting its intervention.
Mr Alrick Brown, a conciliation officer at the Ministry, wrote to the appellant by letter dated 16 April 2012, regarding the termination of Miss Simpson's employment. The appellant was asked to indicate its availability to attend a “conciliatory meeting” at the offices of the Ministry. The conciliatory meeting was held on 17 May 2012 between Ms Simpson and the appellant and was chaired by Mr Brown. The parties were, however, unable to arrive at an amicable resolution.
On 6 July 2012, Mr Brown wrote to the Chairman of the 1 st respondent, the Industrial Disputes Tribunal (‘the IDT’ or ‘the Tribunal’). He informed the Chairman that he was directed by the Minister of Labour and Social Security (‘the Minister’), in accordance with section 11A(1)(a)(i) of the Labour Relations and Industrial Disputes Act (‘the LRIDA’), to refer the dispute to the Tribunal. Mr Brown says that he copied that referral to both parties by facsimile and by hard copy.
The Director of the Tribunal wrote to the appellant by way of letter dated 10 July 2012, which informed that the Minister had referred the dispute to the Tribunal for settlement and requested the submission of briefs. The appellant's attorneys responded to the Tribunal, by letter dated 16 July 2012 stating, inter alia, that they had not received direct notification of the Minister's decision to refer the dispute to the Tribunal, but were so advised by their client.
By letter dated 18 July 2012, the appellant's attorneys, informed the Tribunal that the appellant was unable to submit to the jurisdiction of the Tribunal because neither they nor the appellant had received notification of the Minister's decision to refer the dispute to the Tribunal.
On 23 July 2012, Mrs Melisa Collash-Manahan, on behalf of the Director of the Tribunal, responded to the appellant's attorneys. She informed them that the Tribunal had no alternative but to proceed with the matter in accordance with section 11A(1)(a)(i) of the LRIDA. She asked the attorneys to indicate by 30 July 2012, whether certain dates were convenient for them for the commencement of the hearing.
The appellant's attorneys responded to the Tribunal on the same date (23 July 2012), by letter and indicated as follows:
“As attorneys on record for the employer pursuant to a referral by the Minister under section 11(A)(1)(b) [sic] of the [LRIDA] we expected to receive a copy of any report or notice of any referral under section 11(A)(2) [sic] of the Act.
We have done the only appropriate thing in the circumstances of this case. We have brought it to your attention that we were not served with or notified of the contents of your letter of the 10 th July 2012. We also indicated that we would take steps by copy of same to find out from the Ministry if a notice was sent to us because, in our view, the jurisdiction of the IDT is affected.
…”
On 26 July 2012, the appellant sought to invoke the jurisdiction of the Supreme Court by filing an application for leave to apply for judicial review. The following were the orders sought:
“1. Leave to Apply for Judicial Review by way of an Order of Certiorari to quash the decision of the 2 nd respondent to refer the dispute between the applicant and Natasha Simpson relating to the termination of her employment to the 1 st respondent.
2. An Order of Prohibition to prevent the 1 st respondent from exercising jurisdiction to hear the matter relating to a dispute regarding the termination of the employment of Natasha Simpson.
3. A stay of proceedings regarding the dispute relating to the termination of the employment of Natasha Simpson pending the hearing of the application for Judicial Review.
4. Such Further and/or other relief as this Honourable Court deems just.”
The relevant grounds on which the orders were sought were:
“1. …
2. The [IDT] has no jurisdiction to hear the dispute.
a. The [IDT] is a creature of the [LRIDA]. Accordingly, it has jurisdiction only in relation to matters that are referred to it in compliance with the [LRIDA]
b. The dispute was referred to the [IDT] in breach of the [LRIDA] and/or it was procedurally unlawful in so far as it purports to be a referral under section 11A(1)(a)(i) of the [LRIDA].
c. In these proceedings the dispute could only be properly referred under s. 11(A)(2) [sic] of the [LRIDA] subject to any questions of procedural impropriety or bias.
3. The [Minister] erred as a matter of law in referring the dispute to the [IDT] under section 11A(1)(a)(i) of the [LRIDA] in so far as the dispute at all material times proceeded under or was handled by the [Minister] in accordance with section 11(A)(1)(b) [sic] of the [LRIDA]:
a. The [Minister] in accordance with section 11A(1)(b) gave directions to the parties to resolve the matter in conciliation by way of a letter dated April 16, 2012.
b. The parties attended the conciliation on the 17 th day of May 2012 at the Ministry of Labour presided over by Mr. Alrick Brown the [Minister's] servant and/or agent.
c. The parties had no choice in the naming of the conciliator as contemplated by the section.
d. Subsequent to the conciliation proceedings, [UMS Ltd] did not give a report to the Ministry in accordance with section 11A(2).
e. [The appellant] is not in receipt of a report from Natasha Simpson or her representative to the Ministry.
f. [The appellant] is prejudiced in so far as it is now aware by way of COPY letter delivered to it on the 16 th July 2012 that the said Mr Alrick Brown, the Minister's servant and/or agent signed the referral of the matter to the [IDT] on behalf of the [Minister].
4. [The appellant] also relies on the matters referred to in paragraph 3 hereof to allege procedural impropriety in that the conciliation proceedings contemplated an independent and separate arbiter distinct from the [Minister] and or its [sic] servant and/or agents but in this case the procedure was breached in so far as Mr Alrick Brown imposed himself on and presided over conciliation proceedings.
5. [The appellant] also relies on the matters referred to in paragraph 3 hereof to allege bias or a reasonable apprehension thereof on the part of the [Minister] in that Mr Alrick Brown having participated in the conciliation proceedings is not a proper person to make or participate in the decision to refer the matter to the [IDT] whether that referral is pursuant to s. 11(A)(1)(a)(i) [sic] or 11(A)(2) [sic] of the [LRIDA]. In this instance he would have acted as a mediator (a neutral without prejudice proceedings) and decision-maker for the purpose of referring the matter to the [IDT].
6. [The appellant] also avers that if Mr Alrick Brown as the servant and/or agent of the [Minister] was properly entitled to participate in the conciliation proceedings, and thereafter make the referral then it is entitled to reasons in order to be in a position to properly:
a. Challenge the decision of the Minister to make a referral to the [IDT]; or
b. Prepare its brief to the Tribunal as is required of it by the tribunal.
7. …
8. The termination of Natasha Simpson does not fall within the ambit of the [IDT's or the Minister's] jurisdiction as it was done justly in accordance with the terms of her employment contract and in accordance with the Employment Termination and Redundancy Payments Act and in particular section 3(3)(a) thereof whereby the other party Miss Natasha Simpson agreed to the terms of termination with immediate effect with two weeks' salary.
The application for leave was heard on 5 and 11 September 2012 by Campbell J. The learned judge delivered his judgment on 29 April 2016. He refused leave on the ground that “the application for leave for judicial review does not disclose that the applicant has an arguable case with a realistic prospect of success”. At paragraphs [22] and [23] of his judgment, he said:
“[22] The Conciliator, is not a judge who is party to the cause, nor has he a financial interest in a party to the cause or in the outcome of the cause. Neither is he closely connected with a party to the proceedings. There is no evidentiary proof that the...
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