Jamaica Flour Mills Ltd v Industrial Disputes Tribunal
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 23 March 2005 |
| Neutral Citation | [2005] UKPC 16 |
| Court | Privy Council |
| Docket Number | Appeal No. 69 of 2003 |
| Date | 23 March 2005 |
[2005] UKPC 16
Present at the hearing:-
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Scott of Foscote]
The Tribunal found against the company on all these issues and, in particular, found that Their Lordships are of the opinion that this appeal should be dismissed and, save in respect of one point taken by the appellant that was not argued in the courts below, cannot usefully add anything to or improve upon the reasons given by Forte P, Harrison JA and Walker JA in the Court of Appeal for coming to the same conclusion. Nonetheless out of respect for the submissions of Mr Scharschmidt QC, counsel for the appellant before the Board, as he had been before the Court of Appeal, and also in order to give coherence to their Lordships' views on the additional point taken before the Board, it is necessary to say a little about the nature of the litigation and the appellant's case.
The Statutory Framework
In 1975 the Parliament of Jamaica enacted the Labour Relations and Industrial Disputes Act ("the Act"). The Act contained provision for the Minister to make regulations "for the better carrying out of the provisions of this Act" (s.27(1)) and required the Minister to lay before Parliament for Parliament's approval –
"3(1) … the draft of a labour relations code, containing such practical guidance as in the opinion of the Minister would be helpful for the purpose of promoting good labour relations in accordance with –
(a) the principle of collective bargaining …;
(b) the principle of developing and maintaining orderly procedures in industry for the peaceful and expeditious settlement of disputes …;
(c) the principle of developing and maintaining good personnel management techniques designed to secure effective co-operation between workers and their employers and to protect workers and employers against unfair labour practices."
A draft Code was duly laid before Parliament and was approved by both Houses of Parliament in the course of 1976. Paragraph 2 of the Code records the tension between the efficient use of resources, material and human, and the need to accord respect and dignity to the workers. The Code urges employers to
"… ensure that … adequate and effective procedures for negotiation, communication and consultation … are maintained with their workers" (para. 5(iv))
and –
"insofar as is consistent with operational efficiency [to]
take all reasonable steps to avoid redundancies" (para. 11(ii))
and –
"[to] inform the worker, trade unions and the Minister responsible for labour as soon as the need may be evident for such redundancies" (para.11(iii))
Section 11A of the Act allows the Minister, on his own initiative, to refer an industrial dispute to the Industrial Disputes Tribunal ("the Tribunal") for settlement. Section 12 deals with the awards the Tribunal may make and, of particular relevance to this case, section 12(5)(c) provides that if the dispute relates to the dismissal of a worker, the Tribunal –
"(i) shall, if it finds that the dismissal was unjustifiable and that the worker wishes to be reinstated, order the employer to reinstate him, with payment of so much wages, if any, as the Tribunal may determine;
(ii) shall, if it finds that the dismissal was unjustifiable and that the worker does not wish to be reinstated, order the employer to pay the worker such compensation or to grant him such other relief as the Tribunal may determine;
(iii) may in any other case, if it considers the circumstances appropriate, order that unless the worker is reinstated by the employer within such period as the Tribunal may specify the employer shall, at the end of that period, pay the worker such compensation or grant him such other relief as the Tribunal may determine."
Sub-section (5) ends by saying that "the employer shall comply with such order".
Two points of construction regarding section 12(5)(c) have been raised before the Board; first, whether paragraph (i) is, as would appear from the word "shall", mandatory, and, if so, what happens in a redundancy case if the job has disappeared. This is the new point, raised for the first time before the Board. The second point is whether "unjustifiable" simply means unlawful or has the wider meaning of "unfair".
Issues have arisen, also, regarding the effect of the Code and the use that can be made of it in a case such as the present. In paragraph 8 of its Award the Tribunal, responding to a submission that the Code was no more than a set of guidelines and was not legally binding, observed that the Code was "as near to law as you can get". This observation was endorsed by Clarke J in the Full Court (p.28) and by Forte P (p.6), Harrison JA (p.20) and Walker JA (p.37) in the Court of Appeal. Both in the Full Court and in the Court of Appeal reliance was placed on Village Resorts Ltd v The Industrial Disputes Tribunal SCCA 66/97 (unreported) in which Rattray P, in the Court of Appeal, had described "The Act, the Code and the Regulations" as providing a "comprehensive and discrete regime for the settlement of industrial disputes in Jamaica" (p.11) and as a "road map to both employers and workers towards the destination of a co-operative working environment for the maximisation of production and mutually beneficial human relationships" (p.10, cited by Forte P in the present case at p.3 of the Court of Appeal judgment). Forte P went on to say that the Code
"… establishes the environment in which it envisages that the relationships and communications between the [employers, the workers and the Unions] should operate for the peaceful solutions of conflicts which are bound to develop." (pp.3 and 4)
Their Lordships respectfully accept as correct the view of the Code and its function as expressed by Rattray P in the Village Resorts case and by Forte P in the present case.
The facts
The facts of the present case have been fully set out in the courts below. The essentials can be briefly expressed. The appellant, Jamaica Flour Mills Ltd ("JFM") operates a flour mill located at Windward Road, Kingston. JFM's main raw material is wheat which is imported from the USA. The wheat is unloaded at the Shell-Rockfort pier and stored in silos at the mill. The unloading at the pier was carried out by means of equipment operated by JFM employees. The three employees, Mr Suckie, Mr Campbell and Mr Gordon, whose dismissals gave rise to this litigation, were employed at the pier. They were members of the National Workers Union. JFM and the Union were party to a Collective Labour Agreement under which JFM had the right to dismiss employees whose jobs had become redundant (see clause 21 of the Agreement).
In 1997 ADM Milling Co purchased shares in JFM and became the majority shareholder. Under its new management JFM re-assessed the efficiency of the unloading operation at the pier and, in 1999, concluded that it would be more cost-effective to contract-out that part of its business operations. JFM's decision to do so meant that the three employees became redundant. JFM did not inform the Union or the employees of the impending redundancy.
A letter of 13 August 1999 was issued to each of the three employees at about 2.15pm on that date. Each was dismissed with immediate effect. Each letter was accompanied by a cheque for a sum calculated to cover (i) payment in lieu of notice (ii) separation payment (iii) payment for unused and prorated vacation leave and (iv) payment for accumulated sick leave. Each letter requested the employee to return "all keys, identification...
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