Embed Size (px)
Citation preview
REPUBLIC OF TRINIDAD AND TOBAGO
In the High Court of Justice
Claim No. CV2015-01850
IN THE MATTER OF THE JUDICIAL REVIEW ACT
CHAPTER 7:08 OF THE LAWS OF TRINIDAD AND TOBAGO
AND
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF THE
DECISION DATED 2nd MARCH 2015 AND MADE BY AND/OR ON BEHALF OF THE
HONOURABLE MINISTER OF LABOUR, SMALL AND MICRO ENTERPRISE
DEVELOPMENT PURPORTEDLY PURSUANT TO SECTION 51(3) OF THE INDUSTRIAL
RELATIONS ACT CHAPTER 88:01 OF THE LAWS OF TRINIDAD AND TOBAGO (“THE
ACT”) TO GRANT AN EXTENSION OF TIME TO THE STEEL WORKERS UNION OF
TRINIDAD AND TOBAGO TO REPORT A TRADE DISPUTE REFERRED TO IN ITS
LETTER DATED 15th NOVEMBER 2012 BEYOND THE PERIOD OF SIX MONTHS
PRESCRIBED
BY THE SAID SECTION 51(3) OF THE ACT
BETWEEN
ARCELORMITTAL POINT LISAS LIMITED (in Liquidation)
Claimant
AND
THE MINISTER OF LABOUR, SMALL AND
MICRO ENTERPRISE DEVELOPMENT
Defendant
Before the Honourable Mr. Justice R. Rahim
Appearances:
Ms. V. Gopaul instructed by Ms. T. Budhu for the Claimant
Mr. R. Martineau SC and Mr. A. Bullock instructed by Mr. S. Julien for the Defendant
2
JUDGMENT
1. This a decision on an application to judicially review the decision of the Minister to grant
an extension of time to the Steel Workers Union of Trinidad and Tobago (the Union) to
report a trade dispute in relation to the alleged “additional duties of Crane Operators to
Glenford Cottle, Kenrick Benjamin and Johnny Marcelle in the Rolling Mill Department,
effective 27th August 2010”, beyond the six-month period prescribed by section 51(3) of
the Industrial Relations Act, Chapter 88:01 of the Laws of Trinidad and Tobago (the Act)
on grounds that decision is unlawful, unreasonable, in breach of the rules of natural
justice and/or contrary to the policy of the Act.
2. Section 16(2) of the repealed Industrial Stabilisation Act provided for no power to extend
the time for the reporting of a dispute, however the law changed with the coming into
force of the Industrial Relations Act in 1972.
3. Pursuant to the leave of this Honourable Court granted on 15th June 2015, the Claimant
commenced judicial review proceedings against the Defendant by Fixed Date Claim
Form filed on 29th June 2015 supported by the affidavit of Deonath Patrick Marajh sworn
and filed on 29th June 2015. Subsequent to the filing of the claim, the Claimant entered
into voluntary liquidation and Attorneys for the Claimant thereafter sought time to obtain
instructions before proceeding with the claim. Having tried unsuccessfully on several
occasions to obtain such instructions, they were eventually provided and the claim was
heard.
Background
4. The Claimant’s workforce has been represented by the recognised majority union for
more than thirty years and included Messrs. Cottle, Benjamin and Marcelle (the
Workers). The relationship of the Claimant as employer and the Union as the
representative union of the Workers and the resolution of any trade disputes arising
3
between them, are governed by the provisions of the Act and collective agreements
negotiated pursuant to the Act.
5. The Act provides a statutory framework by which unresolved trade disputes between
employers and representative unions, concerning the terms and conditions of employment
of workers (including suspension and dismissal) may be reported to the Minister. Within
this statutory framework is a time-limit by which unresolved trade disputes are required
to be reported, that is to say, six months from the date when the issue giving rise to the
dispute first arose. The Minister is, however, vested with the discretion to grant an
extension of time beyond the prescribed six month period where he considers it just to do
so. See section 51(3) of the Act which reads:
“51. (3) A trade dispute may not be reported to the Minister
if more than six months have elapsed since the issue giving
rise to the dispute first arose, save that the Minister may, in
any case where he considers it just, extend the time during
which a dispute may be so reported to him.”
6. In this case, the Defendant granted the Union’s application dated 15th November 2012 for
an extension of time to report a trade dispute.
The evidence
7. The Claimant filed and relied on the affidavits of Deonath Patrick Marajh sworn to and
filed on the 29th June, 2015 and 4th August 2016. The Defendant relied on the affidavit of
Lincoln Lee Chee sworn to and filed on the 29th February, 2016.
The Undisputed Facts
8. The Claimant has in its submissions, quite helpfully set out in material particular, the
undisputed facts so that there is no need to add to them. The court therefore adopts them.
4
9. The workers were crane operators employed in the Rolling Mill Department of the
Claimant and were assigned additional duties with effect from the 27th August, 2010. The
assignment became the subject of a trade dispute between the Claimant and the workers
union but was not reported as one to the Defendant within the prescribed period.
10. By letter dated the 15th November, 2012, the union applied to the Defendant for an
extension of time to report the dispute. The application was made pursuant to section
51(3) of the Act. In support of the application, the Union stated as follows;
“In an effort to resolve the dispute, the Union wrote to the Company (the Claimant) on
two occasions requesting (Stage 2 and Stage 3) Meetings, under the grievance procedure
of the Collective Agreement, to discuss the matter. However, several meetings were held
with both the Union and the Company but no success was achieved, therefore the matter
remains unresolved.
In view of the forgoing and in the interest of the worker’s concerned the Union hereby
urges the Honourable Minister to grant the extension sought.”
11. The Ministry wrote to the Claimant on the 6th May, 2013, advising of and inviting the
Claimant’s comments on the application to extend time. In the letter, the Ministry
enclosed copies of the following letters from the Union;
i. Letter dated the 15th November, 2012 in which the Union applied for the
extension of time; and
ii. Letter dated the 24th April, 2013 in which the Union provided further information
to the Ministry at the Ministry’s request.
12. The letter of the 24th April 2013 set out as follows;
i. Meetings were held between the Claimant’s Representative and the Union on the
17th August, 2011, 15th November, 2011 and 17th February, 2012;
5
ii. The Union requested a stage 2 meeting on the 11th November, 2011.
Subsequently, two meetings were held, the last being held on the 17th February,
2012, where a solution to the issue seemed to be achieved. However following
this meeting, the Claimant’s management changed its position;
iii. On the 22nd October, 2012, the Union requested a stage 3 meeting but received no
response from the Claimant, and
iv. Consequently, the Union made the extension of time application on the 15th
November, 2012 in order to properly report the dispute.
13. The Claimant failed to respond and a reminder letter dated the 5th June, 2013, was sent to
the Claimant. By letter dated the 6th June, 2013, the Claimant lodged its objection to the
extension of time application (“first letter of objection”). In summary, the grounds of
objection were as follows:
i. The Union failed to explain to the Minister what steps it applied in accordance
with the grievance procedure under the Collective Agreement;
ii. The Collective Agreement cannot override the legislative intention of Section
51(3) of the Act, so as to increase the lifespan of the dispute beyond the six month
period;
iii. The Union failed to supply the Minister with reasons for its delay with dealing
with the dispute;
iv. The Union failed to identify the specific nature and scope of the dispute;
v. The Union could not rely on staff shortages.
14. Subsequently, the Ministry wrote to the Union on the 10th June, 2013, enclosing the
Claimant’s first letter of objection and invited the Union to submit comments on the
objections by the 2nd July, 2013.
15. By letter dated the 1st July, 2013, the Union submitted its response to the Claimant’s
objections (“the Union’s Response”). The Union’s Response was as follows:
6
i. The Union held a Stage 1 meeting on 17th August, 2011 after the Claimant reneged on
its initial position to desist from assigning additional duties to workers, having first
assigned such duties to the workers on the 27th August 2010.
ii. The Claimant subsequently ceased its assignment of additional duties to the workers
but then once again reneged assigned such duties in August 2011.
iii. The matter was then referred at this point to Stage 2 and Stage 3 of the grievance
procedure where no attempt was made by the Claimant to resolve the matter and it
was therefore referred to the Minister for an extension of time.
iv. During the period August 2010 to 11th November 2011 the Union underwent changes
in the personnel performing the duties of Chief Labour Relations Officer.
v. At no time did the Claimant acknowledge receipt of the request for both Stage 2 and
Stage 3 meetings and object on the grounds set out in the First Letter of Objection.
vi. The Claimant was attempting to deny the possibility of a much needed solution to a
long and drawn out impasse by presenting technicalities as hurdles with the clear
knowledge of how the events unfolded.
16. The Ministry forwarded the Union’s Response to the Claimant on 17th July 2013 for
comments. Two reminder letters were sent by the Ministry to the Claimant on 20th
August 2013 and 7th October 2013.
17. On 18th October, 2013, the Claimant submitted its reply (“second letter of objection”) to
the Union’s Response. In this letter, the Claimant set out the reasons why it was
maintaining its position that the Minister ought not to grant the Extensions of Time
application. In summary, the reasons were as follows:
i. The Claimant reiterated its position that the Union failed to identify the nature and
scope of the dispute and clarify what were the additional duties involved.
ii. The Union’s Response contained two different dates and two different periods in
respect of which the issue giving rise to the dispute first arose.
iii. The Union did not undergo any changes in personnel performing the duties of Chief
Labour Relations Officer.
7
18. Subsequently, by letters dated the 25th October, 2013, 22nd November, 2013 and 2nd
January, 2014, the Ministry sought the Union’s comments on the Claimant’s second letter
of objection. The evidence demonstrates that no comments on the second letter were in
fact made by the Union.
19. By letter dated the 2nd March, 2015, the Union and the Claimant were informed that the
time to report the trade dispute was extended to the 2nd June, 2015 and so by letter dated
the 16th March, 2015, the Union reported the trade dispute. The Defendant, by letter dated
the 20th April, 2015 acknowledged receipt of the Union’s report, a copy of which was
dispatched to the Claimant.
The case for the Claimant
20. Deonath Patrick Marajh is employed with the Claimant in the capacity of General
Manager. According to the evidence of Marajh, the Claimant was unaware as to whether
the Union submitted any comments to the Claimant’s second letter of objection since
same was not disclosed by the Ministry. Further, the Claimant was not provided with any
reasons for the Minister’s decision to grant the Union’s application for the extension of
time.
21. The grounds upon which the Claimant seeks judicial review are as follows:
i. The Minister erred in law and/or unreasonably and/or improperly exercised his
discretion to grant an extension of time beyond the six month period prescribed
by section 51(3) of the Act in the absence of (a) sufficient and/or reasonable
and/or credible grounds put forward by the Union in its application to justify its
inordinate delay of approximately two years in reporting the alleged trade dispute
and/or (b) in the absence of any sufficient and/or reasonable and/or credible
material on which the Minister could lawfully and/reasonably and/or properly
make a determination that was just to grant the said extension of time.
8
ii. The Minister exercised his power in a manner which is so unreasonable that no
reasonable person could have so exercised the power.
iii. The decision of the Minister conflicts with the policy and/or objective of the Act,
that is to say, to achieve the expeditious determination of trade disputes and/or
timely compliance with the provisions of the Act.
iv. The Minister breached the rules of natural justice by (a) failing to disclose to the
Claimant the material which was capable of satisfying him that it was just to grant
the extensions of time to the Union to report the said dispute approximately two
years after the alleged dispute first arose on the 27th August, 2010 and/or the
response of the Union (if any) to the Claimant’s further letter of objection dated
the 18th October, 2013 and (b) failing to give the Claimant the opportunity to
make further submissions and/or respond to such material.
The Defendant’s response
22. Lincoln Lee Chee is the Senior Conciliator and Labour Relations Officer of the Ministry.
According to evidence of Lee Chee, no further comments were received from the Union
in response to the Claimant’s second objection. Via telephone conversation on the 29th
January, 2014, Mr. Timothy Bailey of the Union informed Ms. C. Joshua, an on-the-job
trainee of the Ministry (at that time) that the Union had no further comments to make on
the matter.
23. Subsequently, Ms. Joshua prepared a Note recommending that the Union’s request for the
extension of time be granted. To ensure that Ms. Joshua was guided by the Ministry’s
internal procedures, Lee Chee carefully and duly considered the Note and made the
following observations:
i. Although both parties were invited to make comments on the request for the
extension, the Claimant failed to treat or adequately treat with the Union’s
position that certain commitments were made by the Claimant at the bilateral
stage which they subsequently reneged upon;
9
ii. That the spirit and intent of the law is to encourage good industrial relations and
the possible benefits to be obtained from allowing the parties a neutral
environment within which to air grievances outweighed any possible detriment
which was likely to be caused to either party;
iii. Consideration was given to whether the Claimant would have suffered any
inconvenience or loss if the extension was granted. From the Claimant’s
comments it was clear that the Claimant’s agents and records would still be
available notwithstanding the extension;
iv. Further, consideration was given to whether a failure to grant the extension of
time to facilitate the report of the dispute would have a deleterious effect on the
relationship between the Claimant and the employees as the grievance would have
been left to fester, Moreover, that the purpose of Conciliation meetings is to allow
parties to air and resolve grievances before a neutral party and therefore
encourage healthy industrial relationships.
v. There was some contention as to the date on which the issue first arose. At first
glance it would appear that the date of issue was 27th August, 2010, in which case
the delay would have been one year and nine months. However, on further
examination of the information provided by the Union and the Claimant’s
comments in response to same, Lee Chee considered that the date the issue first
arose was in fact August, 2011, the Claimant having ceased its act of assigning
additional duties but having resumed same in August 2011, in which case the
period of delay would have been significantly reduced to nine months;
vi. There was a continuous series of efforts by the Union to have meetings with the
Claimant which explained the period of delay and that the Claimant was
responsible for some of the delay.
vii. The Claimant, despite the delays on its part continued to facilitate the bilateral
meetings without condescending to explain to the Union that it intended to abort
the process at some stage without actually resolving it;
viii. The Claimant sought to rely strictly on its interpretation that Section 51(3) of the
Act as an absolute bar to bringing a dispute. According to Lee Chee, he was
guided by the interpretation that Parliament intended to create an environment
10
where good industrial relation practices could prevail. As such, he considered the
impact that an unresolved grievance would have had on the relationship between
the Claimant and the employee.
24. Additionally, in considering the recommendation to grant the Union’s application, Lee
Chee took the following factors into consideration:
i. Whilst the effective date of issue was stated by the Union as the 27th August,
2010, the information submitted by the Union in its letter dated the 1st July, 2013
seemed to suggest that the true effective date would have been in August, 2011,
that is, the date on which the Claimant purportedly reneged in its agreement to
discontinue the assigning of additional duties to the employees;
ii. Considering the date of issue as August, 2011 and not August, 2010, the Union
would have taken steps within a reasonable time to deal with the matter at the
appropriate stage of the grievance procedure.
iii. The fact that the Claimant did not advance any reason that suggested that it would
have been inconvenienced or disadvantaged in any way if the Union was granted
an extension of time,
iv. The Claimant’s objection “that the Union failed to state in a specific manner
what exactly the additional duties are…” raised substantive issues which were not
relevant at that stage. Rather at that stage, it was necessary to consider whether an
extension should be granted having regard to the information provided by the
parties, whether the parties were having discussions/negotiations, the status of any
discussions/negotiations and/or reasons for the delay.
v. The granting of the extension of time would have allowed the parties to fully
ventilate the substantive issues.
25. According to the evidence of Lee Chee, the option to seek the advice of the Industrial
Court under section 51(4) of the Act was available, however it was not utilized at this
stage since the facts seemed quite clear. Regard was given to the advice of the Court in
A9/1997 at paragraph 12.1 which states “…that, while the Minister is permitted by the
11
Act to obtain the Court’s recommendation and advice on any question which arises under
s51(3)… it is the Minister himself who is required to make the decision whether or not he
will exercise his jurisdiction… The Minister is accordingly not bound by the Court’s
advice or recommendation in any particular case”. Pursuant to the authority delegated to
Lee Chee by the Honourable Minister, and having regard to all the information that was
submitted by the parties, Lee Chee made the decision, in the interest of fairness and
justice, to extend the time to report to dispute to the 2nd June, 2015.
UNLAWFULNESS/ ERROR OF LAW-Failure to apply the Industrial Court
Recommendations
26. The Claimant submitted that the decision of the Defendant to extend the time was
unlawful in that the Defendant failed to consider the statutorily sanctioned Industrial
Court Recommendations, being those set out in several authorities including, Texaco
Trinidad Inc –v- Oilfield Workers Trade Union, Civil Appeal No. 42 of 1969,
National Union of Government and Federated Workers –v- Tobago House of
Assembly (Minister’s Referral for Advice), A6 of 1995 and A9 of 1997 – In the
matter of a reference of a question by the Honourable Minister of Labour and Co-
Operatives to the Court for its recommendation and advice pursuant to section
51(4) of the Industrial Relations Act. In summary these authorities acknowledge that
the scheme of the Act and the grievance procedure provide for an efficient and timely
resolution of complaints so as to inter alia instil confidence in the process and provide a
stable industrial relations environment. The authorities require that the union move with
due dispatch when treating with workers’ complaints.
27. Thus according to the Claimant, the Defendant failed to consider that;
(i) The whole scheme of the Act is intended to achieve expeditious determination of
trade disputes.
(ii) The time-limit in section 51(3) for reporting of a trade dispute must therefore be
observed.
12
(iii) Efficient trade unions will be aware of the law and should not fail to take the steps
required of them.
(iv) A party who seeks an extension of time under section 51(3) of the Act must
present to the Minister sufficient material and good reasons for its inability to
comply with the stipulated time limit. In other words, the burden lies on such
party to establish a basis on which the Minister’s discretion could properly be
invoked.
(v) The fact that the grievance machinery of a registered collective agreement has not
been exhausted and/or there are pending legal proceedings in another court is not
a justification for delaying the report of a trade dispute. In other words, it is an
irrelevant consideration.
28. The submission is further, that the failure to consider the recommendations means that
the Defendant would have mis-directed himself in law.
29. The Defendant submits that the issue which confronts the Minister when faced with a
section 51(3) application to extend the time is whether on the facts it is just to do so. That
previous advice rendered by the Court under section 51(4) may, to the extent that they
speak to broad and general principles, be marginally relevant to the exercise of that
discretion. Even an advice rendered by the Court pursuant to section 51(4) in respect of a
pending application does not have to be followed by the Minister, a fact which the Court
itself acknowledged in A9 of 1997, an advice delivered by the Court on the 15th
December 1997. The advice and recommendations are not binding on the Minister in a
subsequent application, because the facts which accompany any application for an
extension of time vary, and because it is the Minister’s discretion which is to be
exercised, and not the Court’s. Each application would turn on its own facts. In so
submitting, the Defendant argues that slavish adherence to Industrial Court
Recommendations is not required when considering whether to extend time.
30. The Defendant also sought to distinguish the facts and circumstances in the National
Union of Government and Federated Workers v. Tobago House of Assembly case, by
13
submitting that His Honour Mr. Khan made his comment in that case obiter. It submitted
that the Union in that case did not advance any reason at all for the extension of time. The
opinion which His Honour Mr. Khan delivered, therefore, could not be understood as one
in which the Union had advanced as a reason the fact that it was attempting to exhaust the
grievance procedure first as the reason for not reporting the dispute on time and that that
was the basis of its application for an extension of time.
31. Further, the Defendant submits that His Honour Mr. Khan failed to appreciate that
Georges JA was not speaking to or considering the question of whether it was just for the
Minister to extend the time to report a dispute. What the Learned Justice of Appeal was
speaking to was whether the fact that grievance procedures were being exhausted was
relevant in discerning the date when the issue that gave rise to the dispute first arose. In
so doing he cautioned against an extension of time that was not permitted by the Act, by
liberally fixing the date when the issue first arose to bring the dispute within the six
months period so that the Minister could lawfully receive a report of the existence of the
trade dispute. It is submitted that the Learned Justice of Appeal did not say, and cannot be
reasonably be understood to have said, that the fact that grievance procedures were being
exhausted was irrelevant to the exercise of the Minister’s discretion to extend the time for
the reporting of a trade dispute, or irrelevant to a finding of whether it was just to extend
the time for doing so.
Are pending grievance procedures relevant to the exercise of the discretion by the Minister
32. This court is of the view that in considering the reasons set out by the party seeking the
extension, the fact that grievance procedures were ongoing is a matter which in law ought
to be properly considered having regard to the context in which it is raised. It would be a
grave error should any minister turn a blind eye to such a relevant factor. That being said,
the degree of relevance or the weight to be accorded to such a factor would vary in each
case depending on the facts and circumstances.
14
33. Texaco Trinidad Inc. v Oilfield Workers Trade Union supra concerned the dismissal
of an employee for unauthorized possession of company property. After the employee
was acquitted of the offence, the Oil Field Workers Trade Union raised the question of
the employee’s dismissal under the grievance procedure of the Industrial agreement
between the company and the employee. The company refused to consider the grievance
on the ground that it was time barred. Nonetheless, the Union and the company did meet
twice to discuss the matter and the company finally refused to consider reinstating the
employee. The Union thereafter reported the trade dispute to the Minister pursuant to
section 16(1) of the Industrial Stabilisation Act, No. 8 of 1965. The company submitted
that the court could not deal with the matter because the dispute had not been reported to
the Minister within the prescribed six month period. It argued that the issue giving rise to
the dispute first arose when the employee was dismissed. The Union however submitted
that the grievance arose not when the employee was dismissed but when the charge
against him was dismissed and it became evident that the company had made a mistake in
dismissing him. The Court of Appeal in agreeing with the company that the issue out of
which this dispute first arose was the dismissal itself, observed that while the nature of
the dispute may change during discussions between the employer and the union, the
original issue or event always remains the same.
34. Georges JA at page 6 stated that “In the result I am satisfied that the interpretation
placed upon the word “issue” in section 16(2) of the Act by the Court in this case was
erroneous; that the word should be interpreted as meaning “event” and that the issue out
of which the dispute first arose in this case was the dismissal of Figuero. The report to
the Minister was clearly out of time and the subsequent proceedings are thereby
vitiated.” His Lordship further stated that the Act made it clear that the dispute arises out
of the issue and not the other way around.
35. It is clear to this court that the gravamen of the decision in Texaco supra, lies with the
principle that the material date for the purpose of ascertaining when a dispute would have
first arisen must be taken to be the date upon which the event which gives rise to the
dispute first occurred. Their Lordships also treated with the issue of the timely
15
notification of a dispute and were pellucid in their view as to the need for unions to be
cognizant of its deadline for the notification of a dispute. Essentially, the issue of a
challenge to an extension of time for notification of a dispute was not before their
Lordships so that one has to apply the learning in this case with a measure of care in light
of the subsequent legislation which now provides for an extension of time.
36. In National Union of Government and Federated Workers v. Tobago House of
Assembly supra the Tobago House of Assembly (“the Assembly”) dismissed a worker by
letter dated the 6th July, 1988 in which it informed him that his services had been
terminated with effect from the 6th August, 1987. The worker’s dismissal was first raised
by the NUGFW with the Assembly in June, 1992 and discussions in accordance with
steps I, II, II of the Grievance Procedure were held but the matter was not resolved. A
step IV hearing took place on the 1st July, 1993 and the Assembly gave its decision on the
23rd August, 1993 by letter dated the 16th August, 1993. By letter dated the 27th August,
1993, the NUGFW sought an extension of time from the Minister to report the dispute.
The Minister sought the recommendation and advice of the Industrial Court on when the
issue giving rise to the dispute first arose and whether or not it would be proper for him to
exercise his discretion to extend time for the Union to report a trade dispute to him. The
Court held that in accordance with Texaco Trinidad Inc. supra, the issue giving rise to the
dispute was the date of dismissal. Further, at paragraph 6, after quoting section 51(3) of
the Act, the Vice-President of the Industrial Court, His Honour Mr. Khan, advised the
Minister as follows:
“The subsection is pellucidly clear that a party desiring to report a trade dispute after
the expiration of six months from the date on which the issue which gave rise to the
dispute first arose must first obtain the Minister’s permission to do so and the Minister
will only extend the time in a case where he consider it just. It follows, therefore, that a
party who seeks the Minister’s extension must do so on reasonable grounds. I have noted
earlier….that the Union has not advanced any reason for the extension for which they
have applied.
16
It appears, however, from the letters exhibited to the Minister’s Referral that the
employer entertained a complaint from the union about the worker’s dismissal in June
1992 and that thereafter hearings were held under the grievance machinery and that the
final decision of the employer was communicated to the union only in August 1993. This,
however, is no reason why the union could not have acted promptly in reporting a trade
dispute about the worker’s dismissal within the statutory period of limitation. In my
opinion, the fact that hearings under the grievance machinery of a registered collective
agreement have not been exhausted is not a justification for delaying the reporting of a
trade dispute to the Minister. I find support for this view in the opinion of George J.A. (as
he then was) which he expressed in Texaco Trinidad Inc and Oilfield Workers Trade
Union…”
37. In so far as the abovementioned case purports to set out as a matter of law that the fact
that hearings under the grievance machinery of a registered collective agreement have not
been exhausted is not justification to delay the reporting of a trade dispute to the Minister
within the time prescribed, this court does not agree with such a general statement of
principle. Neither is it of the view that Their Lordships intended to set such a general
principle in the Texaco case. Such a principle or law is in the court’s view reflects too
broad an approach in that it fails to acknowledge and factor in the context and
circumstances of each case. By way of example, there may be a case in which the
outcome of the grievance process appears to be bearing much fruit and the union may be
of the genuine belief that timely reporting of a trade dispute in that circumstance may be
to endanger significant progress made thus far. This is by no means an inconceivable
scenario. Slavish adherence to a timeline in such circumstances may well augur to the
disadvantage of the grievance process itself which indirectly goes against the grain of
facilitating a conciliatory relationship between the parties for the benefit of all.
38. In A9/1997 supra the reported trade dispute concerned the dismissal of an employee on
the 20th March, 1992. By letter dated the 18th October, 1996, the Union applied for an
extension of time to report the dispute to the Minister. The Court found that since the
dismissal of the worker became effective on the 20th March, 1992, the six month period
17
referred to in section 51 (3) of the Act expired on the 20th September, 1992. The Court
further stated that in an application for an extension of time, it was necessary for the
applicant to present the Minister with sufficient material and good reasons for its inability
to comply with the stipulated time limit. The reasons given by the Union for the delay
were as follows;
“i. the Union discussed the worker’s dismissal with the Employer at a meeting on
May 14, 1992 but the matter remained unresolved.
ii. The worker subsequently “took the matter to the Civil Court” (whatever that
means) and the matter was finally dismissed on January 23, 1996 because the
worker did not attend court because of his illness.
iii. Save for the meeting between the Union on May 14, 1992 the Employer
refused to meet with Union or settle the matter.”
39. His Honour, Mr. Khan at paragraph 9.1 stated that the time limit stipulated in section
51(3) for the reporting of a trade dispute must be observed whether or not other legal
proceedings are pending in any court concerning a related matter. His Honour further
stated at paragraph 11.1 that the Union did not present sufficient material and/or adequate
reasons to the Minister in this case to enable him to hold that it was just for him to
exercise his discretion to extend the time in accordance with section 51(3) of the Act and
that the Union’s application should be refused.
40. It should be noted that, His Honour, Mr. Khan went on to state as follows;
“12.1 Out of an abundance of caution, I wish to emphasise that, while the Minister is
permitted by the Act to obtain the Court’s recommendations and advice on any question
which arises under s.51(3) on the exercise of his discretion whether or not to extend the
time in any particular case, it is the Minister himself who is required to make the decision
whether or not he will exercise his discretion in accordance with the relevant section of
the Act. The Minister is accordingly not bound by the Court’s advice or recommendation
18
in any particular case. However, if the Minister agrees he may accept the views
expressed herein and adopt them as his own.”
41. It is clear to this court that while the duty lies with the union to provide good reasons for
its failure to report a dispute within the prescribed time, the minister is not only confined
to the reasons provided by the union but is also entitled to consider such other factors
which appear to him to be relevant to the exercise of his discretion. Further, that the fact
that grievance procedures are ongoing is a factor which may be considered by the
minister when exercising his discretion. This consideration will invariably not be the sole
consideration and the weight to be attached will be determined by the circumstances and
context of the dispute. In the court’s view, such an approach does not derogate form the
learning set out in Texaco and appears to be in keeping with the spirit and intention of the
Act.
42. It is therefore the finding of the court having regard to the matters set out supra that the
Minister did not misdirect himself and did not fail to apply relevant industrial court
recommendations. The court is fortified in its view by the dicta of my brother Kokaram J
in his erudite judgment in the case of TOSL Engineering Limited v Minister of Labour
and Small Enterprise Development (CV2013-02501) at paragraph 43 wherein His
Lordships opines; “From an examination of the statutory context of the exercise of the
Minister’s discretion, it appears that the procedures generally provide the Minister a
great degree of latitude and discretion in the management of trade disputes that are
reported to him. Indeed when one re- examines section 51(3) IRA the obligation is on the
reporting party to report the matter within the six months time bar. There is no statutory
provision which provides for a formal application for an extension of time by the
reporting party. It is a free standing power granted to the Minister to extend the time “in
any case where he considers it just”. The underlying theme in the exercise of those
powers of course would be the promotion of good industrial relations practices and
indeed to that extent the Courts have viewed the Minister and the Industrial Court as
performing that dual role enmeshed in a tag team to promote the objects of the
Act.”(Emphasis mine).
19
ERROR OF LAW-CALCULATION OF THE PERIOD OF DELAY
43. The Claimant submits that the Defendant committed an error of law by calculating the
period of delay as having commenced from the expiration of the statutory six month
period. They submit that all limitation periods run from the date of the accrual of the
cause of action, not after. In the case of the reporting of a trade dispute, time runs from
the date of issue first giving rise to the dispute. The Union in its Extension of Time
Application relied on 27th August 2010 as the date on which the issue arose. The
Minister, in granting the Extension of Time Application, also accepted that the date upon
which the dispute first arose was the 27th August 2010. This notwithstanding Mr. Lee
Chee’s attempt to suggest to this Honourable Court that the issue arose in August 2011.
44. It is submitted that the counting of time from the expiration of the six month period
means that Ms. Joshua and Mr. Lee Chee were in fact discounting the statutory six month
period from the period of delay and therefore did not require an explanation in relation to
same. It is submitted, that by discounting the period the Minister fell into error by
believing wrongly that the period of delay was less lengthy than it actually was. Instead
of addressing their minds to a delay of two years, and three months (27th August 2010 –
15th November 2012), Ms. Joshua and Mr. Lee Chee addressed their minds to the shorter
period of time (27th February 2012 – 15th November 2012). Mr. Lee Chee also
compounded this error by utilising a much later date, that is to say, August 2011, as the
starting point for counting time.
45. The court is of the view that the legal argument is of merit but that the evidence before
this court does not support the argument of the Claimant. The issue before the Minister,
according to the Act was that of making a determination as to whether it was just to
extend the time for the reporting of the dispute beyond the last day permitted by statute
for so doing. The union would not ordinarily have to provide a reason for waiting until
the last day to report a dispute (so long as they comply with the deadline) as that is their
entitlement under the Act. But where it has not so done, and the deadline has passed, it
must explain its failure so to do. In those circumstances the Minister would have had to
20
be satisfied that there was a good reason for the union not having reported the dispute
until the date upon which the dispute was actually reported. The separation of the periods
between pre-six month and post six month serves no useful purpose and is wholly
unnecessary having regard to the statutory right conferred on the union to report the
union by particular date.
46. Additionally, the facts of this case are different to the example set out by His Lordship in
the Texaco case. In that example, there was one action of the employer which was never
rescinded, namely a dismissal. That action would in the usual course of events have
formed the only basis for the determining that a dispute had arisen so long as
circumstances had not changed. As demonstrated from the facts of the present case. The
original event whereby the workers were asked to perform additional duties would have
occurred in August of 2010, but the evidence discloses that an agreement had been
arrived at subsequently between employer and employee and so the issue was brought to
an end. In other words, unlike the example set out in the Texaco case, the dynamic had
changed fundamentally so that from the time of that agreement the Claimant did not
require the workers to perform additional duties. The union was entitled to consider that
the issue had been resolved and was at an end. However, the Claimant reneged on its
agreement. This means that the Claimant having also brought the issue to an end and
having conducted itself in accordance with the agreement for some months, then made an
about face and began once more to require that the workers perform additional duties. At
this time a dispute of the same type would have arisen. It could not have been the same
dispute as the original dispute had been resolved and the union would have been entitled
to so believe. The stage one meeting was then held in August 2011. This demonstrates
that certainly by that date the Claimant had reneged on its agreement.
47. It is of manifest unfairness that the Claimant would be permitted to benefit from its own
promise to end the dispute and its actions in that regard which would have caused the
union to believe that the dispute was at an end. If such actions were to be condoned it
would mean that all an employer would have to do would be to make a promise to end
the action which gave rise to the dispute and to so act for a time, only to once again
21
commence the offensive action after six months would have elapsed from the date of the
first dispute. Surely this could not have been the intention of the Act and neither could it
have been in keeping with the spirit of conciliation contained within the walls of the
legislation. Such unfairness would certainly at all times redound to the detriment of the
worker and the union if permitted.
48. It must be the case therefore that Mr. Lee Chee, having had to find an operative date for
the new dispute, would have acted reasonably and in keeping with the law when he chose
the date of the stage one meeting as it is at this time that it became certain that the
Claimant was once again asking the workers to perform additional duties. It is his
evidence that in his view, on further examination of the information provided by the
Union and the Claimant’s comments in response to same, the date the issue first arose
was in fact August, 2011, the Claimant having ceased its act of assigning additional
duties but having resumed same in August 2011. This reasoning cannot on the
information available to the witness at the time be faulted.
49. However, contrary to that set out in the submissions of the Claimant, at no time does Lee
Chin state that he only considered an explanation for the period February to November
2012. In fact the conjoint effect of his evidence (see paragraphs 12 and 25 of the affidavit
of the 11th March 2016) is that the considerations include the reasons for delay, the party
responsible, and actions taken during the period of delay but he does not confine himself
to any specific period. Ta paragraph 26 (vi) of the said affidavits, Lee Chee testified that
having considered that the date the issue arose was August 2011, the period of delay
would have been significantly reduced to nine months. This does not in the court’s view,
equate to the witness saying that the only period he considered for the purpose of the
application was that of nine months. This could not have been the case as the very
witness sets out that he also considered the steps taken by the parties on the 17th August
2011, and the 15th November 2011. These are all matters which arose during the period
that the Claimant says Lee Chee discounted but his evidence is that he considered these
matters. It therefore must on the evidence mean that Lee Chee would have considered the
explanations and reasons given for the entire period whether before or after the deadline
22
for reporting. His reference to a period of nine months must be taken in that context and
when so viewed, demonstrates that he was simply referring to a calculation of the period
between February 2012 and November 2012 and is not to be taken as he having said that
he would have only considered this period.
50. The court therefore finds that the calculation of the date was not unlawful and further,
that the Defendant did not fail to consider reasons for delay from August 2011.
ERROR OF LAW-ACTING IN THE ABSENCE OF EVIDENCE OR MATERIAL
51. It is the submission of the Claimant that there was no evidential basis on which the
Minister could find that the delay for that period of approximately one year was
explained, sufficiently or at all, so as to justify the exercise of his discretion. All decision-
makers are required to act on the basis of some material or evidence before them. In the
absence of such material or evidence, the only logical conclusion is that the decision-
maker acted without same and therefore acted unlawfully.
52. The defendant argues that firstly, the argument that there was a one year delay from the
27th August 2010 to the 17th August 2011 is based on the premise that the date of the
issue which gave rise to the dispute that the Union sought to report was the 27th August
2010 which goes against the evidence of Lee Chee, the only evidence of that which was
considered by the Defendant. There was therefore no need to explain the period between
the 27th August 2010 to the 17th August 2011, as during the tenancy of the agreement
between the Claimant and the Union on the assignment of duties to the workers there was
no dispute to report.
53. The court agrees fully with the submissions of the Defendant in that regard bearing in
mind its findings supra. It is the case here, and the court so finds, that the dispute arose on
the 17th August 2011. It means that the union had a period of six months thereafter within
which to report the dispute, making the last reporting date the 16th February 2012.
Further, the evidence set out above discloses that the application or request to the
23
Minister to extend the time for reporting the dispute was made by the union on the 15th
November 2012. The subsequent delay in the grant of the application for the extension
was not the fault of the union but was occasioned by the sensible approach adopted by the
Defendant in attempting to provide full disclosure to all sides and canvass their opinions
prior to making a decision. The Minister would therefore have had to have before him
material which explained the failure to report from the 17th August 2011 to the date of the
application.
54. The evidence in this case shows without doubt that from the 17th August 2011 to the date
of the application, the parties had several meetings in an attempt to resolve the dispute.
The evidence also clearly demonstrates that the Defendant had been made aware of these
facts by the union and had considered the fact of meeting in an effort to come to a
resolution as one of the factors in determining whether to extend the time for reporting.
The letters all speak for themselves and there is no need for the court to repeat the
evidence in this judgment. The argument that the Defendant acted in the face of no or
little material or evidence is of no merit.
UNREASONABLENESS/IRATIONALITY
55. The court reminds itself at this stage that its duty is not that of the imposition of its view
of whether the extension ought not to have been granted but that of a supervisory role in
keeping with the approach advocated by His Lordship Jamadar JA in Gajadhar v Public
Service Commission CA Civ 170 of 2012;
“..the primary function of the court is to exercise a supervisory jurisdiction in a
context of cooperation, where the common goal of all parties and of the State is to have a
court of law ascertain whether the decision under review is justifiable in the public
interest and/or is beneficial or detrimental to good public administration. That is, the
common aim of the courts and of public authorities is the maintenance of the highest
standards of public administration, achieved in part through the process of judicial
review.
24
Articulated in a more philosophical way, the underlying purpose and rationale for
judicial review is to uphold the rule of law. To the extent that it is evident that judicial
review is rooted in the rule of law, it is therefore rooted in the Constitution and as such
bestows on the courts a constitutional duty and responsibility to exercise judicial
governance over all administrative decisions that are amenable to judicial review.”
56. The Claimant submits that the Minister failed to apply all the relevant considerations
necessary for the proper exercise of his discretion under section 51(3) of the IRA, namely
the Industrial Court Recommendations. In addition, the Minister applied the irrelevant
consideration of bilateral discussions between the parties. It was submitted that this is in
and of itself sufficient to render the Minister’s Decision unreasonable within the meaning
of Wednesbury unreasonableness.
57. A decision is unreasonable or irrational if it is so unreasonable that no reasonable person
acting reasonably could have made it (Associated Provincial Picture Houses Ltd v
Wednesbury Corporation (1948) 1 KB 223). The test is a higher test than merely
showing that the decision was unreasonable. The court has articulated its findings on the
Industrial Court Recommendations and the consideration of bilateral discussions as one
of the reasons for delay. There is no need to repeat. No other substantive basis of
unreasonableness has been put forward by the Claimants. In any event and for the
avoidance of doubt, the court finds that the evidence before it in no way discloses that the
decision of the Defendant was so unreasonable that no reasonable person acting
reasonably could have made it having regard to not only the considerations as set out by
Lee Chee but also on the evidence of the circumstances and several letters set out above.
UNFAIRNESS/ NATURAL JUSTICE
58. The Judicial Review Act Chap 7:08 provides as follows:
20. An inferior Court, tribunal, public body, public authority or a person acting in the
exercise of a public duty or function in accordance with any law shall exercise that duty
25
or perform that function in accordance with the principles of natural justice or in a fair
manner.
59. The rules of natural justice require that the decision maker approaches the decision
making process with 'fairness'. What is fair in relation to a particular case may differ. As
pointed out by Lord Steyn in Lloyd v Mc Mahon [1987] AC 625, the rules of natural
justice are not engraved on tablets of stone. The duty of fairness ought not to be restricted
by artificial barriers or confined by inflexible categories. The duty admits of the
following according to the authors of the Principles of Judicial Review by De Smith,
Woolf and Jowell;
i. Whenever a public function is being performed there is an inference in the
absence of an express requirement to the contrary, that the function is required to
be performed fairly. Mahon v New Zealand Ltd (1984) A.C. 808.
ii. The inference will be more compelling in the case of any decision which may
adversely affect a person’s rights or interests or when a person has a legitimate
expectation of being fairly treated.
iii. The requirement of a fair hearing will not apply to all situations of perceived or
actual detriment. There are clearly some situations where the interest affected will
be too insignificant, or too speculative or too remote to qualify for a fair hearing.
This will depend on the circumstances.
60. The Claimant submits that Mr. Lee Chee made two adverse findings against the
Claimant, namely, that the Claimant was responsible for some of the delay and, the
Claimant continued to facilitate bilateral meetings with the Union without condescending
to explain to it that it intended to abort the process at some stage without actually
resolving it. See paragraphs 26(vii) and (viii) of the Lee Chee Affidavit. It was submitted
that in the case of the former, Mr. Lee Chee has not provided any factual basis on which
he arrived at such a conclusion as the record does not demonstrate any delay on the part
of the Claimant prior to the reporting of the trade dispute on 15th November 2012. It is
submitted that in the case of the latter, this demonstrates that Mr. Lee Chee ascribed an
ulterior motive on the part of the Claimant not to engage in bona fide discussions and to
26
string the Union along. The Claimant argues that prior to the making of those adverse
findings, fairness dictated that the Minister should have informed the Claimant of same
and provided it with the opportunity to be heard.
61. In relation to the former, the evidence demonstrates that there was a stage one meeting to
treat with the issue then a stage two meeting. The union subsequently wrote to the
Claimant on the 22nd October 2012 requesting a stage three meeting. No response was
ever forthcoming from the Claimant in relation to that request. In answer to the
Defendant on the application to extend the time, the Claimant sought to establish that
union did not appreciate that stage one meetings were between the employer and the
worker and not between the employer and the union. At no time however did the
Claimant attempt to explain its reason for not replying to the request for a stage three
meeting in October 2012. The Claimant was provided with a full opportunity to so do but
failed to so do. However, the failure to reply to the request could only have accounted for
a period of delay which amounted to mere weeks as the application for the extension was
made to the Defendant in the month of November 2012. If blame for delay is to be
ascribed to the Defendant, on the evidence, it could only have been for that short period.
62. There is no evidence that the company was responsible for the delay prior to October
2012. Indeed it appears that the company was in fact meeting with the union as requested
before that date. Be that as it may, the court is of the view that the submission of the
Claimant is misconceived as the evidence of Lee Chee at paragraph 26(vii) sets out that
“There were delays in the process, for (sic) some of which the Company was
responsible.” Lee Chee therefore does not purport to saddle the Claimant with
responsibility for the delay throughout the entire period but in fact ascribed some only of
the responsibility to them. The evidence demonstrates that this is a correct assessment of
the facts that were before Lee Chee and that he was entitled to draw the inference that the
Claimant was responsible for some of the delay, namely for the period during which they
failed to respond to the request for the stage three meeting to the date of the application
for the extension.
27
63. The right to be heard is an integral component of the right to natural justice and fairness.
In the present case, it cannot be said that the Claimant was not given the opportunity to be
heard. It is equally clear that the Claimant availed itself by the opportunity having set out
in pellucid form its position on the application by detailed letters of 6th June 2013 and
18th October 2013. At no time however did it attempt to explain the reason for not
responding to the request for the stage three meeting. Fairness is about the opportunity to
be heard and the Claimant was given more than a reasonable opportunity to be heard. The
submission that the Defendant ought to have specifically informed the Claimant of the
inference it was about to draw so that they could then be heard in the face of two detailed
letters setting out their position is in the court’s view of no merit a full opportunity to be
heard having been afforded the Claimant.
64. Further, it appears that that finding by Lee Chee was but one of several and its import
would not have been material to the decision having regard to the short period of delay
which has been ascribed to the Claimant in the evidence. For these reason there would
have been no unfairness in this regard.
65. In relation to the allegation that the Defendant considered that the Claimant continued to
facilitate bilateral meetings without explaining to the Union that it intended to abort the
process with resolving the issue, the court agrees with the submission of the Claimant
that this would have been an adverse finding against the Claimant. Lee Chee gave no
basis for this finding in his evidence neither is any readily apparent. In the court’s view
therefore it was not open to Lee Chee to make such a finding and if he did, the Claimant
was certainly entitled to be heard on it.
66. It does not of course follow as a matter of course that the decision of the Defendant is
vitiated as a consequence as the breach in this case must be viewed in the context of all
the evidence and circumstances including but not limited to the other considerations
factored in by the Defendant when making the decision. In that regard, the court notes
that Lee Chee did not ascribe a weight to such a finding when taken with his other
considerations. Further, it appears clear that such a finding would not have been the
28
material and guiding consideration in the exercise of the discretion to extend the time as
there are several others. In the court’s view, the evidence of Lee Chee demonstrates that
the guiding considerations appeared to be the fact that there had been on going meetings
and that it was likely that the Claimant would not suffer prejudice, inconvenience or
detriment should the extension have been granted. When viewed from this perspective,
the breach of the right to be heard does not in the court’s view lead to a conclusion or
finding of unfairness to the Claimant. This case is one in which the breach is so
insignificant that it cannot and does not derogate from the right to a fair hearing which
was in fact afforded the Claimant.
CONFLICT WITH POLICY OF THE ACT
67. The Claimant submits that the Defendant’s decision conflicts with the policy of the Act,
that is to say, the expeditious hearing and determination of disputes. The Act promotes a
stable industrial relations environment. It is submitted that this policy would be defeated
if unions could bring stale-dated disputes out of the woodwork, so to speak. Employers,
just like any other litigant, are entitled to conduct their business on the basis that the
parties have moved on and the statutory time limit would be applied unless there is good
reason for extending time to permit the reporting of a trade dispute outside of the
prescribed six month period. It is submitted that by his decision the Defendant is in effect
facilitating and/or condoning unjustifiable delay on the part of the union, rather than
insisting on its compliance with the statutorily prescribed time-limit and/or its provision
of sufficient reasons for doing so.
68. The Defendant counters that while the Act emphasises the expeditious resolution of
disputes, the Act’s main purpose is the stabilisation, improvement and promotion of
industrial relations. In attempting to do so the Act sets a six month period to report trade
disputes to the Minister, but also gives the Minister the discretion to extend the time to
report the trade dispute where he considers it just, as well as the power to remit to the
parties a reported dispute where he is of the opinion that suitable procedures for settling
29
disputes exist and these have not been followed by the parties. These suitable procedures
include the existence of grievance procedures which are required to be included in
collective agreements. The pursuit of negotiations and the exhaustion of grievance
procedures in consistent with the policy of the Act. That is the manner in which good
industrial relations are promoted and secured. Parliament has therefore put the Minister
(through his specialist staff) in a specialist role in industrial relations.
69. There is much force in the submissions of the Defendant in this regard. Additionally, it
must be appreciated that expedition is not the only attribute set out in the policy of the
Act but that others include the promotion of conciliation and good industrial relations.
Depending on the circumstances of any given case, different weights will be accorded to
one or more of the elements of the policy. It all depends on the circumstances of the issue
before the Minister. In one case, the need to ensure that there is conciliation between the
parties may override expedition. It does not mean that because conciliation trumps
expedition in that case, a decision which acknowledges such priority is one made in
conflict with the policy of the Act. Each case must be determined on its own facts by the
Minister in keeping with the general objectives of the Act. Expedition is not in the court’s
view an overriding policy consideration. In the present case, a balance would have had to
be struck between the competing factors of expedition and the need to resolve disputes.
All material factors were considered on the evidence in the Minister’s attempt to balance
the factors and to arrive at a decision which in his view was just. The court therefore
finds that his actions were not in all of the circumstances in conflict with the policy of the
Act.
70. For these reasons the court will dismiss the claim and order that the Claimant pay the
costs of the Defendant to be assessed by a Registrar in default of agreement.
Dated this 2nd day of February, 2017
Justice Ricky Rahim
Judge
