Fri | Jan 28, 2022

ASSAULT ON IDT

Constitutional lawsuit claims tribunal is unfair arbiter of labour disputes

Published:Tuesday | June 1, 2021 | 12:16 AMTanesha Mundle/Staff Reporter

The Jamaican Redevelopment Foundation (JRF) Inc has filed a constitutional lawsuit against the 46-year-old Industrial Disputes Tribunal (IDT) claiming that it is not an independent and impartial arbiter of labour conflicts. The challenge may pose...

The Jamaican Redevelopment Foundation (JRF) Inc has filed a constitutional lawsuit against the 46-year-old Industrial Disputes Tribunal (IDT) claiming that it is not an independent and impartial arbiter of labour conflicts.

The challenge may pose an existential threat to the IDT, as currently constituted, and turns scrutiny on the merit and objectivity of its record.

The foundation, in the claim that was filed Monday in the Supreme Court’s civil division against the attorney general and the IDT, is seeking a declaration from the court that sections 7(2) and 8(2) (c) of the Labour Relations Act and the Industrial Disputes Act, as well as sections 1, 2, 3, 4 and 7 of the second schedule to the Labour Relations and Industrial Disputes Act, are in violation of the doctrine of separation of powers and the right to due process under Section 16(2) of the Constitution.

It also wants the court to find that the tribunal, as currently empannelled, is unconstitutional.

The JRF, which has a current labour dispute before the IDT with former employee Margaret Curtis, over the termination of her contract, is also seeking to have that matter stayed until the tribunal is “reconstituted in a manner that ensures its independence and impartiality as guaranteed by the Constitution”.

Additionally, the claimant wants the court to grant any other relief it might see fit, as well to order its costs to be taxed if it not agreed.

The lawsuit was filed on 16 grounds, which include Section 16(2) of the Constitution, containing the Charter of Fundamental Rights and Freedom (Charter), that guarantees that “in the determination of a person’s civil rights and obligations or any legal proceedings which may result in a decision adverse to his interest, he shall be entitled to a fair hearing within a reasonable time by an independent and impartial court or authority established by law”.

Other grounds of the challenge centre around claims that:

a) The Labour Relations and Industrial Disputes Act is inconsistent with the charter and that although the tribunal is a quasijudicial body, it is not independent of the executive branch of government;

b) The chairman and deputy chairmen of the IDT are appointed at the sole discretion of the minister of labour and social security;

c) Several chairmen and deputy chairmen of the IDT have been persons with close familial or political connection to the present and former labour ministers;

d) The minister seemingly has the power to reject the nomination of persons to be appointed to the IDT, a power which the minister has used with respect to the nomination from the Jamaica Employers’ Federation (JEF) and that all members of the IDT serve at the pleasure of the minister.

According to the IDT website, the tribunal comprises a chairman, two deputy chairmen, and six members appointed by the minister of labour and social security. Three of the members are nominated by the JEF and three by the Jamaica Confederation of Trade Unions.

Attorney-at-law Gavin Goffe, partner at Myers, Fletcher & Gordon, which is representing JRF, told The Gleaner on Monday that the JRF strongly believes that the IDT’s current existence violated persons’ rights under the Charter of Rights.

Further, he said the “JRF has a reasonable fear, given certain statements that have been made in the public domain that won’t get a fair hearing before the IDT”.

However, trade unionist Lambert Brown rejected the JRF’s arguments.

“I believe it’s an abuse of process,” he said on Monday.

Brown said that the tribunal has asked the JRF, since November 2019, to file briefs in relation to its case.

“I have no problems with the fairness of the tribunal and the courts have, over and over, supported the decision of the tribunal,” Brown said.

tanesha.mundle@gleanerjm.com