University of Technology, Jamaica v Industrial Disputes Tribunal and Others (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Lady Hale |
| Judgment Date | 17 July 2017 |
| Neutral Citation | [2017] UKPC 22 |
| Court | Privy Council |
| Docket Number | Appeal No 0106 of 2013 |
| Date | 17 July 2017 |
[2017] UKPC 22
Lady Hale
Lord Kerr
Lord Clarke
Lord Wilson
Lord Reed
Appeal No 0106 of 2013
Privy Council
From the Court of Appeal of Jamaica
Appellant (University of Technology, Jamaica)
(Did not appear and were not represented)
Respondent (Industrial Disputes Tribunal and ors)
(Did not appear and were not represented)
Respondent (University and Allied Workers Union)
(Did not appear and were not represented)
Intervener (Jamaica Employers Federation)
Gavin Goffe
Alexis Robinson
(Instructed by Sheridans)
Intervener (Attorney General)
Althea Jarrett
Director of State Proceedings
(Instructed by Charles Russell Speechlys LLP)
Heard on 24 January 2017
This case is about the role of the Industrial Disputes Tribunal (IDT) under the Labour Relations and Industrial Disputes Act (LRIDA) when determining disputes about the dismissal of an employee. In short, is it modelled on the role of an Employment Tribunal, under the United Kingdom's Employment Rights Act 1996, or is it something distinctively Jamaican? In particular, can the IDT take into account matters of which the employer was unaware at the time of the dismissal and can it form its own judgment about whether, in the light of all the information available, the dismissal was justifiable? Or is it limited to deciding whether the employer's decision was one which a reasonable employer might have taken in the light of the information available to him at the time?
These are questions of great importance to employers and employees throughout Jamaica. The proceedings were initiated by a trade union, the University and Allied Workers Union, in support of an employee, Miss Carlene Spencer, against her employers, the University of Technology, Jamaica (UTech). But by the time the case reached the Board, the Jamaican Employers' Federation (JEF), as intervener, had taken over the argument on behalf of the employer and the employee did not appear to respond to the employer's appeal, her trade union not having been put in a position to assist her. Recognising the importance of the case, the Board requested one of its Judicial Assistants to prepare a "Respondent's Note", setting out the arguments which the respondents might have made had they appeared to resist the appeal. This note was disclosed to the JEF, who were given permission to respond to it in writing after the hearing. The Board subsequently gave leave to the Attorney General to intervene with written submissions, to which the JEF has responded with additional submissions. For this reason, the interval between the oral hearing of the appeal and the delivery of the Board's opinion is longer than we would normally hope. But we are most grateful to both interveners for the help which they have given us and we do not think it necessary to put them to the expense of holding a further oral hearing.
The employer, UTech, is a University established by the University of Technology, Jamaica Act, with its main campus in Kingston. The employee, Miss Carlene Spencer, was employed by UTech as a laboratory technician from 18 October 2004. She approached her departmental supervisor, Mr Michael Bramwell, about taking holiday leave from 5 June to 20 July 2006. Mr Bramwell confirmed in evidence to the IDT that this was at least one month before 5 June. He told her to get approval from the lecturer in charge of the laboratory to which she was assigned, Mr Raymond Martin, before he could approve her application. She filled in the appropriate application form, but did not sign it. The IDT accepted that this was an oversight.
Apparently on a separate occasion, Miss Spencer asked for and was given approval for departmental leave on Monday 29 May, Tuesday 30 May and Friday 2 June. She was absent on those dates and also on Thursday 1 June and from Monday 5 June.
On Wednesday 7 June, Mr Bramwell took the unsigned form to the Human Resources Management Department (HRM) and asked what he should do. He was advised to sign the section of the form reserved for the supervisor's signature and he added in the "Remarks" section, "She is currently off". The leave clerk in that department signed the section of the form which is headed "Approval by HRM" and dated it 7 June 2006. These signatures covered the period of 5 June to 20 July. The IDT considered it "reasonable to infer that Mr Bramwell had intended to approve the vacation leave for Miss Spencer and subsequently did when he affixed his signature to the leave forms and wrote 'she is currently off'".
Miss Spencer remained absent until 3 August, when she visited UTech in order to deliver medical certificates (issued by a local doctor) for sick leave covering the two working weeks 24 to 28 July and 31 July to 4 August. The IDT regarded her absence on 21 July as unauthorised. Monday 7 August was a national holiday and Miss Spencer reported for work on Tuesday 8 August. The following day she was suspended, pending an investigation into her absence from work. She was eventually charged with unauthorised absence from work; under the employer's disciplinary code, the sanction for five days or more unauthorised absence is dismissal. Her Union intervened on her behalf to complain about the formulation of the charges and referred the matter to the Ministry of Labour.
While the matter was pending before the Ministry, UTech amended the charges. An internal disciplinary hearing took place to consider them on 3 April 2007. Neither Miss Spencer nor her Trade Union attended the hearing, although they had notice of it. The tribunal was advised that it could go ahead in their absence, despite the pending reference to the Ministry. It found that she was in breach of UTech's disciplinary code, having been absent from work without authorisation for at least five consecutive days. Her application for leave was not duly made and authorised before the leave was taken and Mr Bramwell's signature did not constitute retroactive approval. It recommended dismissal and she was later dismissed as a result. The Union then initiated another industrial dispute, which was referred by the Ministry to the IDT in these terms:
"To determine and settle the dispute between the University of Technology Jamaica on the one hand, and the University and Allied Workers Union on the other hand, over the dismissal of Ms Carlene Spencer."
The IDT held a number of hearings, at which witnesses were heard on behalf of both UTech and the Union. UTech learned for the first time that Ms Spencer had in fact been on holiday in the United States. But the IDT declined to order her to produce her passport. The IDT's written award was published on or about 9 December 2008. Its conclusions were:
"(1) Miss Carlene Spencer's vacation leave for the period 5 June 2006 to 20 July 2006 was authorised and approved.
(2) Miss Carlene Spencer's application for departmental leave on the 21 July 2006 was not authorised nor approved.
(3) This Tribunal cannot sustain the dismissal of Miss Carlene Spencer for not attending the Disciplinary Hearing that was convened on the 3 April 2007."
Its finding was that "The dismissal of Miss Carlene Spencer was unjustifiable". UTech was ordered to reinstate her with full salary for the period from her dismissal until the date she resumed work.
UTech then applied to the Supreme Court for certiorari to quash the IDT's decision. This was granted by Mangatal J, principally on the ground that the IDT had misconceived its duty and asked itself the wrong question:
"The IDT should have been asking itself whether, in the circumstances as known or which ought to have been known to UTech, UTech had reasonable grounds for finding that Ms Spencer had been guilty of unauthorised absence from work for a period of 34 days." (para 65)
She was also critical of the IDT's approach to UTech's decision to press ahead with the disciplinary hearing in the absence of Miss Spencer and her Union; to its hearing, considering and relying on Miss Spencer's evidence in relation to whether she had gone on unauthorised leave; and of its refusal to order Miss Spencer to produce her passport.
The IDT and the Union appealed to the Court of Appeal, essentially on two issues: (1) that the learned judge had misdirected herself as to the function, powers and remit of the IDT under the Labour Relations and Industrial Disputes Act and had erred by importing a United Kingdom standard into the scheme of that Act; and (2) that she had treated the matter as an appeal and gone beyond the scope of her powers on judicial review.
The Court of Appeal, in an impressive judgment by Brooks JA, with which Panton P and Dukharan JA agreed, allowed the appeal on both issues and restored the decision of the IDT. The IDT had an original jurisdiction to decide whether the dismissal was unjustifiable and was master of its own procedure. The fundamental question in the instant case was whether the absence from work was unauthorised. The IDT was entitled to hear evidence from Miss Spencer on that question. It was also entitled to refuse to order her to produce her passport, which was not relevant to that question (although Brooks JA accepted that the light which it might have shone on her honesty could have been relevant to whether she should be reinstated, but this was a procedural matter for the IDT). The IDT having asked itself the right question and having evidence to support its findings of fact, a court of judicial review was not entitled to disturb them. The Judge has incorrectly based her view of what was the right question on the English authorities which were dealing with a legislative framework radically different from the LRIDA.
In this appeal, the Employers seek to restore the...
To continue reading
Request your trial
-
Branch Developments Ltd T/A Iberostar Rose Hall Beach and SPA Resort Ltd v The Industrial Disputes Tribunal
...decision of the Judicial Committee Privy Council (JCPC) in University of Technology, Jamaica v Industrial Disputes Tribunal and others [2017] UKPC 22, paragraph Discussion and analysis on ground b 36 In considering appeals in relation to the functions and decisions of the IDT, it is import......
-
The Bank of Jamaica v The Industrial Disputes Tribunal
...of the law was most recently approved by the Privy Council in University of Technology v Industrial Disputes Tribunal and others [2017] UKPC 22. 126 In this new dispensation the IDT, the specialized body set up under the LRIDA, must be allowed to set the standard of what is fair in the cond......
-
Catherine Allen v The Minister of Labour and Social Security
...explained in Village Resorts Ltd v Industrial Disputes Tribunal and University of Technology v Industrial Disputes Tribunal and Others [2017] UKPC 22, and further submitted that the mandate is to the IDT and not the Minister to provide remedies. She says this fact concretizes her position ......
-
Private Power Operators Ltd v Industrial Disputes Tribunal
...Compair case. Counsel buttressed this point by referring to University of Technology, Jamaica v Industrial Disputes Tribunal and others [2017] UKPC 22 ( UTECH UKPC) in which the Privy Council approved the decision of the Court of Appeal in Industrial Disputes Tribunal v University of Techn......