JRF aggrieved over US$203,280 award to former manager

The Jamaica Redevelopment Foundation Inc (JRF) has lost its bid to challenge an Industrial Dispute Tribunal (IDT) award of US$203,280 that was granted to an ex-employee for wrongful dismissal.

Court of Appeal judge Simone Wolfe Reece denied the debt collection agency permission to apply for an order of certiorari to quash the IDT’s award to Margaret Curtis.

In addition to the award, the IDT declared last November that Curtis is to be reinstated as the manager of the Property Department of the JRF, where she worked for 16 years.

The former property department manager had worked with the company from June 2005 until her service was terminated in June 2018 after she protested the company’s failure to pay over bonuses.

Curtis’ contract had indicated that she would be paid an annual bonus of 10 per cent of her basic salary, which is in US dollars, but she only received payments in 2017 after representation.

Her protest over the non-payment of the bonus started in October 2017 and continued into 2018, when she was dismissed.

The company told her then that the reason for dismissal was due to the decreasing sales and overall performance of the property department.

But Curtis contended that her dismissal was unjustified and unfair and the conduct of the JRF was in breach of the Labour Relations Code. The matter was referred to the IDT in November 2019 by the Ministry of Labour and Social Security and ended in her favour.

Judicial review

The JRF, in seeking leave for judicial review to have the award quashed, cited eight main grounds, including that the IDT violated the company’s constitutional right to due process and, therefore, the award is illegal null and void, and that the award is illegal as the IDT failed to specify the date of dismissal and the date from which the award would take effect as required by Sections 12(4)(b) and 12(4B) (b) of the Labour Relations Industrial Disputes Act (LRIDA).

The company also grounded its application on the view that the award of US$203,280 was irrational, as no explanation was given as to how the sum awarded was arrived at, in circumstances where Ms Curtis would have earned significantly less than the sum had she remained employed from the date of dismissal until the date of the award.

JRF’s lawyer, Matthew Royal, in arguing the point about the constitutional breach, pointed to several sections of the LRIDA, which he said were in violation of the doctrine of separation of powers and do not offer sufficient protection for the independence and impartiality of the IDT as a quasi-judicial body.

He further added that the IDT, as presently constituted, including the panel that determined this dispute, was not in keeping with the Constitution and, therefore, the JRF’s constitutional right to due process was breached and the award was, therefore, illegal null and void.

Royal also submitted that Curtis’ reinstatement amounted to procedural impropriety and that the panel’s refusal to allow them to make submissions was a breach of the rules of natural justice.

Disciplinary action

Additionally, he argued that the panel’s finding “that the likely reason for termination was that Ms Curtis was confrontational with management on several occasions over the non-payment of a discretionary bonus” amounted to a disciplinary action as contemplated by Section 11B LRIDA. He further noted that the IDT could not have found there was a dispute in this regard because Curtis had not lodged a complaint against such action to the minister within 12 months and, therefore, was not a part of the dispute as of September 19, 2018, nor was it part of the complaint sent to the ministry on Curtis’ behalf.

Pertaining to the cost of the award, Royal posited that it was irrational, as the panel did not show how it had arrived at the figure and that the award bore no apparent connection to retroactive wages.

However, in the recently published judgment, Justice Wolfe Reece said: “In a total consideration of the case presented and issues raised, I find that there is no evidence that there is basis for the court to exercise its supervisory power in this matter.”

But responding to the issue raised about the award said there was no requirement that the award must be specific or limited to retroactive wages.

Justice Wolfe Reece also disagreed with JRF’s contention that the panel’s finding for Curtis’ dismissal was faulty, noting that the company had failed to place any evidence before the tribunal that would have contradicted the findings.

She, however, found that the panel had erred in preventing the JRF from making submissions in relation to Curtis’ reinstatement.

Attorney-at-law Jovan Bowes also represented JRF.

Louis Jean Hacker and Jenoure Simpson from the Attorney General’s Chambers represented the IDT, while attorneys-at-law Emile Leiba and Chantal Bennett appeared for Curtis, who was an interested party in the application.

tanesha.mundle@gleanerjm.com