The Special Tribunal v The Estate Police Association

On 15 May 2014 RBC Royal Bank (Trinidad and Tobago) Ltd (“the Bank”) dismissed 42 estate constables from its employment on the ground that they were redundant as the Bank had decided to outsource the security services at some of its locations. The dismissals gave rise to a dispute between the estate constables and the Bank. The dispute was referred to the Special Tribunal — the body responsible for determining disputes between estate constables and an employer. The Special Tribunal decided that it had no jurisdiction to hear and determine the dispute. These proceedings are for judicial review of that decision.

The Estate Police is constituted by section 3 of the Supplemental Police Act (Ch 15:02). It comprises constables employed on any estate to maintain order on and protect the estate: see section 4(2). As defined in section 2 of the Act, the term “estate” “includes any plantation, lands, warehouse, storehouse, or business premises …”.

Section 36 of the Act prohibits estate constables from being members of a trade union. But section 38 makes alternative provision for representation by an independent association. Section 38(1) establishes:

“an organisation to be called the Estate Police Association which shall act through Branch Boards, and a Central Committee as provided by rules made under this Act.”

The reference to “rules made under this Act” is to rules made under section 39 of the Act, which gives the Minister of Labour power to make rules for the constitution and governance of the Estate Police Association. Rule 2 of these Estate Police Association Rules states:

“Every constable for the time being of the Estate Police shall be eligible for membership of the Association, and the Association shall act through Branch Boards and a Central Committee as is hereinafter provided.”

As will be seen, the sole remaining issue in this appeal is whether the Estate Police Association (“the Association”) is able to represent estate constables in a dispute with an employer when there is no Branch Board in place through which the Association can act.

The Special Tribunal is established by section 21(1) of the Civil Service Act (Ch 23:01) and is charged under that Act and several other statutes with the responsibility to hear and determine disputes arising in various public services. These services include (among others) the civil service, the police service, the fire service, the prison service and the estate police.

The Special Tribunal consists of the Chairman of the Essential Services Division of the Industrial Court and two other members of that Division selected by the Chairman. The Industrial Court is established under the Industrial Relations Act (Ch 88:01) as a superior court of record to hear and determine trade disputes and deal with various other matters in the field of industrial relations. Other than the President and Vice-President, the members of the Industrial Court (and hence of the Special Tribunal) are not required to have any legal qualification.

The jurisdiction of the Special Tribunal in relation to the estate police is conferred by section 42 of the Supplemental Police Act. Section 40 of that Act provides that a dispute which arises between estate constables and an employer may, if not otherwise determined, be reported by the employer or by the Estate Police Association to the Minister of Labour. On such a report being made, the proceedings on the dispute are to be dealt with in the same manner as proceedings on a trade dispute under Part V of the Industrial Relations Act, but with references to the “Special Tribunal” substituted for references in Part V to the “Court”. Under the incorporated provisions of Part V of the Industrial Relations Act, after a dispute is reported to the Minister, there is a period during which the Minister may take steps to secure a settlement of the dispute by conciliation. If at the end of this period the dispute remains unresolved, either party to the dispute may apply to, or the Minister may refer the matter to, the Special Tribunal for determination.

Section 42 of the Supplemental Police Act provides that the Special Tribunal shall hear and determine all disputes referred to it under section 40 and that any award, order or other determination of the Special Tribunal shall be final.

In accordance with section 40 of the Supplemental Police Act, the Association reported to the Minister of Labour the dispute that arose between the 42 estate constables whom the Bank had made redundant and the Bank. On 8 May 2015, the Minister certified that the dispute was unresolved and referred the dispute to the Special Tribunal.

The Association and the Bank each made a written submission to the Tribunal. In its submission the Association contended that the Bank had acted contrary to the Retrenchment and Severance Benefits Act (Ch 88:13), which lays down rules about the dismissal of workers for redundancy, and also that the Bank's actions had been contrary to good industrial relations practices and had been harsh and unjust. The Bank disputed the claim and contended that it had acted lawfully.

There followed an oral hearing before the Special Tribunal which took place over two days on 15 March 2017 and 31 January 2018. The members of the Tribunal were Mr L Achong (Chairman of the Essential Services Division), Mr K Jack and Mr M Maharaj. At the end of the evidence the Tribunal raised of its own motion the question whether it had jurisdiction to determine the dispute. After hearing from the parties' representatives, the Tribunal ruled that it had no jurisdiction to do so and dismissed the claim. Written reasons were later given for this decision. The only reason that remains relevant on this appeal was expressed in a single sentence:

“At the time of the retrenchment the Estate Police Association had not established a Branch Board which is a requirement under the Supplemental Police Act Ch 15:02 in order that the Association be able to represent constables of an estate.”

The Tribunal's reasons also quoted rule 2 of the Estate Police Association Rules (set out at para 3 above) and recorded the Association's admission when the question was raised that “a Branch Board was not in place at the time of the retrenchment exercise.”

The Association applied to the High Court for judicial review of the Tribunal's decision. The Bank took no part in the proceedings. But the Special Tribunal itself opposed the application and appeared at the hearing by senior and junior counsel. The Special Tribunal raised two grounds of opposition. First, the Tribunal argued that, although not expressly designated as such, it is a superior court of record with final power to interpret the law for itself and that its decisions are immune from judicial review. Second, the Tribunal argued that in any event it acted in accordance with the law in deciding that it had no jurisdiction to hear and determine the dispute.

In a written judgment dated 13 June 2019, Rampersad J rejected the Tribunal's first argument and held that decisions of the Special Tribunal are amenable to judicial review. But the judge held that the Tribunal had been correct in law to decide that it lacked jurisdiction to determine the dispute.

The Special Tribunal was dissatisfied with the decision of the High Court that it was amenable to judicial review. It appealed against that decision to the Court of Appeal. The Association cross-appealed on the question whether the Tribunal had jurisdiction to determine the dispute.

In a written judgment dated 30 July 2021, the Court of Appeal (Bereaux JA, with whom Mohammed JA and Dean-Armorer JA agreed) dismissed the Special Tribunal's appeal and allowed the Association's cross-appeal. Having reviewed cases including R (Cart) v Upper Tribunal[2011] UKSC 28; [2012] 1 AC 663, the Court of Appeal concluded that the judge had been correct to hold that the decisions of the Special Tribunal are subject to the supervisory jurisdiction of the High Court and are reviewable. The Court of Appeal further held that the judge and the Tribunal had erred in deciding that the Tribunal had no jurisdiction to determine the dispute, and that there is nothing in the Supplemental Police Act nor the Estate Police Association Rules which requires the Association to act through a Branch Board or prevents it from acting through its Central Committee.

In the light of these conclusions, the Court of Appeal ordered that the matter be remitted to the Special Tribunal. While the Association was wrong (as it now accepts) to assert in the proceedings before the Tribunal that the Retrenchment and Severance Benefits Act applies to estate constables, the Association also contended that the dismissals were harsh and oppressive and contrary to good industrial relations practices. The effect of the Court of Appeal's order is that the Tribunal must consider this argument and decide the dispute.

The Special Tribunal was dissatisfied with the decision of the Court of Appeal. It has brought this appeal as of right to the Judicial Committee of the Privy Council. Its grounds of appeal raise both issues on which it lost in the Court of Appeal: (1) whether decisions of the...