By Sherry-Ann McGregor

In an article published on May 10, 2010 entitled, 'Can the Court review IDT awards?', I reported on the decision of the Supreme Court in the case of The University of Technology Jamaica (UTECH) v The University and Allied Workers Union (UAWU) and the Industrial Disputes Tribunal (IDT) (decided on April 23, 2010).

After reviewing the role of the IDT, the court determined that it could intervene if the IDT failed to correctly apply the law during the course of its proceedings and found that the IDT's decision was impeachable because it had gone too far in reinstating the dismissed worker.

The decision was appealed by the IDT and the UAWU and, on October 12, 2012, the Court of Appeal allowed the appeal - set aside the Supreme Court decision and restored the award of the IDT. In effect, the employee has been reinstated with full salary from the date of her dismissal (in 2007) to the date of her resumption of work.

The following are some important points (paraphrased, in part) to note from the Court of Appeal judgement:

1. The IDT has a free hand in determining its procedure and its findings of fact are unimpeachable.

2. It is not bound by the ordinary or strict rules of evidence and it may admit hearsay evidence.

3. In determining whether a dismissal is justifiable, the IDT is not bound by the strictures of the common law relating to wrongful dismissal.

4. The IDT is obliged to act reasonably, in good faith and observe the rules of natural justice.

5. The role of the court is to carry out a review of an award of the IDT, with concern for the manner in which the decision has been taken. The scope of that review pertains to illegality, irrationality or procedural impropriety.

6. The court does not conduct an appeal and is, therefore, constrained to accept the IDT's findings of fact and is not entitled to substitute its own judgement for that of the IDT.

7. Although the IDT was considering a matter which had already been the subject of a disciplinary hearing, the IDT was carrying out its own enquiry. It was not conducting a review or an appeal. It had original jurisdiction to establish its own procedure and make its own findings of fact.

8. The statutory scheme in England is different from that established by our Labour Relations and Industrial Disputes Act. So even matters which were not known to the employer at the time of the dismissal may be taken into account when the IDT is considering the case before it.

9. The court's powers when reviewing decisions from the IDT are no wider than when considering any other case of judicial review.

Interestingly, the learned judge of appeal said that the contents of the employee's passport revealed that her actions during a portion of the period during which she was absent from work were "dishonest and deceitful". He went on to say, "Had the IDT considered the contents of her passport, it may well have decided to allow the truth to have its effect. It may have, independent of the question of unjustifiable dismissal, decided that UTECH was entitled to be spared having an employee who behaved in that fashion." However, because the decision to exclude the evidence contained in the passport was a matter of procedure over which the IDT had full control, that issue could not properly be reviewed by the court.

Is this judgement highlighting the need for us to review the powers of the IDT and the scope for review of IDT awards by the court? Will there be an appeal to the Privy Council?

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, Delon and Co. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com