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Supreme Court quashes reinstatement of CXC employee, says body enjoys immunity

Published:Tuesday | May 5, 2015 | 6:00 PMBarbara Gayle, Justice Coordinator

The Supreme Court  has quashed the 2013 reinstatement of an employee of the Caribbean Examinations Council (CXC) ruling that the body is entitled to immunity from legal process.

Acting Supreme Court Judge, Marcia Dunbar-Green made the ruling in relation to an award of the Industrial Disputes Tribunal (IDT) that Gerard Phillip, who was dismissed by the CXC in March 2013, be reinstated.

Although quashing the reinstatement, the judge said CXC’s arrangement falls short of the international standard, which is to establish an alternative, independent means of dispute settlement.

Dunbar-Green said it is a matter for the member states that have established the CXC to ensure that it is brought in line with good and necessary international practice.

The CXC did not participate in the hearing before the IDT and contended then that it was immune from legal process an the IDT had no jurisdiction over it.

Following the IDT's ruling, the CXC took the matter to the Supreme Court seeking a declaration and an order to quash the IDT's ruling.

Justice Dunbar-Green heard legal arguments from attorneys-at-law Emile Leiba and Courtney Williams, who represented the CXC and attorney-at-law, Lisa White, who represented the IDT.

White was instructed by the Director of State Proceedings.

Dunbar-Green ruled that the the CXC enjoys immunity from legal process except where it has expressly waived its immunity (Article III (1) of the Diplomatic Immunities and Privileges (Caribbean Examinations Council) Order).

The judge said the circumstances of this case reveal no basis on which any expressed waiver can be found.

"Not even an implied waiver could be established. At the very first sitting of the IDT, the CXC asserted its immunity and maintained that position by refusing to appear and participate in the process. The CXC’s submission of a brief, at the request of the IDT, was at best a courtesy," the judge said.

"The purpose of the Diplomatic Immunities and Privileges Act and the Order is clearly to grant an absolute immunity to the CXC from legal processes including those that are pursuant to the LRIDA (Labour Relations and Industrial Disputes Act) from which the first respondent (IDT) derives its jurisdiction," the judge held.

The judge said she could not uphold the argument of the Director of State Proceedings that the Jamaican Constitution has been breached because the CXC’s internal mechanism for dispute resolution is inadequate or does not exist.