Thu | Nov 23, 2017

Laws of Eve | Balancing the rights of workers and employers

Published:Monday | July 24, 2017 | 12:00 AM

The Privy Council's decision in the case of University of Technology, Jamaica (UTech) v Industrial Disputes Tribunal (IDT) and others [2017] UKPC 22, which was delivered on July 17, 2017, marked the end of a long journey in a matter concerning the termination of the employment of Carlene Spencer from the UTech. UTech dismissed her, the IDT decided to reinstate her employment, the Supreme Court quashed that decision on April 23, 2010, but that judgement was overturned by the Court of Appeal on October 12, 2012

The most recent decision marks a significant victory for employees and the IDT. Despite findings in the Court of Appeal that aspects of the employee's conduct were "dishonest and deceitful" and that the inclusion of a piece of evidence, namely the employee's passport, might have led the IDT to a different conclusion, the court found no basis on which it could overturn the IDT's decision. The fact is that the Court of Appeal and the Privy Council have both reinforced the point that the IDT is the ultimate decision-maker in respect of its procedure and its decisions are final (with very narrow scope for review).

In accepting what it called "an impressive judgment by Brooks JA" in the Court of Appeal, two of the most important aspects of the Privy Council's decision are:

 

Jurisdiction of the IDT

 

"The IDT is entitled to take a fully objective view of the entire circumstances of the case before it, rather than concentrate on the reasons given by the employer. It is to consider matters that existed at the time of dismissal, even if those matters were not considered by, or even known to, the employer at that time." (From paragraph 34 of the Court of Appeal decision.)

 

Jurisdiction of the court

 

The court has a reviewing function and is entitled to review the entire decision of the IDT to detect whether there was any error of law.

The reviewing function is quite distinct from the [court's] appellate function.

The reviewing court has to accept the findings of fact of the IDT, unless there is no basis for them.

The reviewing court is not entitled to substitute its own view of the merits of the case for those of the IDT. If there has been an error of law, the case would normally have to be sent back for reconsideration by the IDT, unless there was only one decision open to it on a correct view of the law.

 

LRIDA's emphasis on settlement

 

In examining the statutory framework created by the LRIDA, the Privy Council made the point that "the emphasis throughout is on the settlement of disputes, whether by negotiation or conciliation or a decision of the IDT, rather than upon the determination of claims". Within that context, it is hoped that sufficient resources are committed to assisting parties to settle disputes, rather than pursuing costly and lengthy claims.

 

LRIDA vs English Act

 

It should be noted that the United Kingdom had legislation that was similar to the Jamaican LRIDA. However, in 1996, it was replaced by the Employment Rights Act. While protecting employees against unfair dismissal, including the right to lodge complaints to the employment tribunal, the 1996 act also preserves the employer's right to dismiss and employee for fair reasons, including "some other substantial reason".

 

The need for balance

 

Labour laws are intended to redress the imbalance in the bargaining positions of workers and employers. To that end, there seems to be some scope for our laws to provide further guidance to both sides in respect of the fair reasons for dismissal of workers.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.