Sat | Sep 23, 2017

Orville Taylor | UTech sleep and mark death

Published:Sunday | July 23, 2017 | 7:00 AM

It took 11 years, but finally it was held in the United Kingdom Privy Council that our panellists in our Industrial Disputes Tribunal (IDT) were very sensible and, importantly, had a better understanding of Jamaican industrial relations practice and labour law.

From my understanding, it was such a simple matter that the members of the tribunal who initially determined it had to use very little brainpower. A senior judge in the Supreme Court, also seeing it as a no-brainer, but of another sort, reversed the award.

Undaunted, the University of Technologytook the matter to our own Court of Appeal. Now, we know that a single judge might have short periods of visitation of daftness. However, three more learned judges are much less likely to surrender their collective intellects than a single one. Indeed, our highest court vacated the judgment of the misnomered Supreme Court and reinforced the original award of the IDT that the worker had been unjustifiably dismissed and should be reinstated.

An important lesson must be learnt here. Laws are made by the legislature; not the courts. Indeed, courts themselves are creatures of law and Parliament, and the Constitution, which itself can be modified by a two-thirds of sitting members.

In their collective wisdom and nominally representing the will of the Jamaican people, 53 men and women in 1975 passed a piece of statute called the Labour Relations and Industrial Disputes Act (LRIDA).

This act was a Jamaican solution to a Jamaican problem. Its preamble is the legislation describes it essentially as an act to regulate regulations between employers and workers, with the manifest interest of maintaining industrial peace.

In furtherance of this, the act established the tribunal and gave it powers that higher courts do not have up to this moment. Apart from hearing evidence of a 'lower quality' than the regular courts, the IDT has the power to reinstate a worker who has been unfairly dismissed. No court outside of the IDT has such authority in Jamaica. British common law, which is the history of precedents based on judicial decisions in the United Kingdom, has consistently shied away from giving courts the authority to enforce personal services contracts. Rather, in the absence of a definite act of parliament, the remedy for an unfair dismissal has consistently been monetary compensation.

According to Section 12 (5)(c) of the act: "... The Tribunal, in making its decision or award - (i) may, if it finds that the dismissal was unjustifiable and worker wishes to be reinstated, then subject to subparagraph (iv), order the employer to reinstate him ... ." Reinstatement is not an absolute right of the worker, because the IDT still has the discretion to determine that it might not be in the interest of industrial peace or his own welfare for him to be returned to the place. There is a reason why Parliament decided against putting lawyers in control of the processes of industrial relations and industrial peace. The fact is that industrial relations and trade unionism, while they touch on the field of law and are bound by myriad statutes and cases, are not taught in law school and only a limited number of lawyers, who, through their experience and study outside their narrow practice, understand the nuances of the field. As a matter of fact, they are notorious for thwarting negotiations because of the combative and adversarial style of their training.

For that same reason, the panellists at the IDT may or may not be attorneys. In fact, in the Industrial Court of Trinidad and Tobago, which has similar status to the IDT, but with powers of a parish court, the tripartite pool of judges does not comprise only lawyers. Our IDT, whenever it meets to hear a dispute, always has a member from the pool of arbiters nominated by the Employers' Federation, the trade union movement and the Government, respectively.

 

Excellent model

 

For me, the IDT offers an excellent model of jurisprudence, especially when dealing with delicate areas of governance that are outside the scope of lawyers and judges, whatever their IQ levels. Thus, it has been my consistent view that entities relating to children, such as the Family Court, must have a panel of judges that includes experts in the field, such as social workers and psychologists/sociologists; because for all their legal training, lawyers who do not have higher-graduate degrees in behavioural sciences are nothing more than rank amateurs who will, from time to time, with the best of intentions, totally mess up lives of children because of their ignorance and ability to ignore the recommendations of social workers employed to the court. I am willing to bet that not one judge or lawyer who presides over family matters has half the expertise of a Claudette Crawford Brown, from the Department of Sociology, Psychology and Social Work at the UWI.

Nevertheless, back to the UTech issue. There is something very repugnant about the rationale behind its lawyer and the Supreme Court judge basing their opinions on a British case that was interpreting a British statute. Somehow, the unused brain matter led them to the notion that a British statute, passed by Brits for Britons, had more sway in a Jamaican court in a Jamaican environment, where a statute is in force and was enacted by Jamaican legislators.

True, I am moderately disturbed that the UTech lawyer, in seeking to augment his image, would have pursued such a nonsensical argument, and, worse, that the university, with its dearth of operating capital, could allow him to lead them along that path. However, I am still trying to find the logic behind the Supreme Court's judge's decision.

But that is what you get when our legislators are pumping fists and backing wrong causes instead of walking away from the Privy Council in favour of a regional court. Up to this moment, for some strange reason, judicial precedents that interpret other CARICOM statutes in other Caribbean nations are only 'persuasive' and not 'instructive'. This is the case, even if the statutes in the compared countries are almost identical.

How stupid can we be? We have similar cultures, the majority of our lawyers and judges are trained in the Caribbean in the same university. Our parliamentarians are dominated by CARICOM education. So, do you honestly think that British judges can use semi-relevant British statutes and evaluate our judgments?

Emancipate yourselves from mental slavery.

- Dr Orville Taylor is senior lecturer in sociology at the UWI, a radio talk-show host, and author of ' Broken Promises, Hearts and Pockets'. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.