University of Technology, Jamaica v Industrial Disputes Tribunal and others

Under Jamaica’s Labour Relations and Industrial Disputes Act, the Industrial Disputes Tribunal has original jurisdiction to settle referred dismissal disputes and decide whether a dismissal was unjustifiable. It is not confined to the employer’s disciplinary record or to matters known to the employer at dismissal. It may conduct its own inquiry and take an objective view of circumstances existing at dismissal, including matters then unknown to the employer. Unjustifiable means unfair, rather than merely unlawful or wrongful at common law. Judicial review remains distinct from an appeal: the reviewing court may intervene for illegality, procedural impropriety or unfairness, and irrationality, but may not substitute its view of the merits or disturb factual findings without a proper basis.

UTech dismissed Ms Carlene Spencer after concluding that she had been absent without authorisation for at least five consecutive days. Before the Industrial Disputes Tribunal, evidence showed that parts of her leave had been approved, and UTech learned that she had been on holiday in the United States. The Tribunal found the dismissal unjustifiable and ordered reinstatement with back pay.

Mangatal J granted certiorari, holding that the Tribunal had asked the wrong question and should have assessed whether UTech had reasonable grounds, based on information known or reasonably knowable at dismissal. The Court of Appeal of Jamaica allowed the appeal and restored the award. The central issues before the Board were the Tribunal’s statutory function and the scope of judicial review.

The Board advised that the appeal be dismissed.

1. Statutory function. The Labour Relations and Industrial Disputes Act creates a distinct Jamaican regime for settling industrial disputes. The expression unjustifiable means unfair, not merely unlawful or wrongful at common law. The statutory scheme gives the Industrial Disputes Tribunal original jurisdiction to determine dismissal disputes and a range of remedies. The Board relied on and approved the approach in Village Resorts Ltd v Industrial Disputes Tribunal (1998) 35 JLR 292 and Jamaica Flour Mills Ltd v Industrial Disputes Tribunal and National Workers Union [2005] UKPC 16.
2. Applicable inquiry. The Tribunal is not an appellate or reviewing body. It conducts its own fact-finding inquiry and may consider the entire circumstances existing at the time of dismissal, including matters not considered or known by the employer. The United Kingdom approach under the Employment Rights Act 1996, reflected in British Homes Stores Ltd v Burchell (Note) 1980 ICR 303 and Foley v Post Office; HSBC Bank Plc v Madden [2000] ICR 1283, was not required by the different Jamaican legislation. Smegh (Ile Maurice) Ltée v Dharmendra Persad [2012] UKPC 23 was distinguishable because the legislative scheme differed and the relevant principle had not been in issue there.
3. Judicial review. Section 12(4)(c) made an award final and conclusive, subject to proceedings on a point of law. Certiorari remained the appropriate procedure. A point of law included illegality, procedural impropriety or unfairness, and irrationality or Wednesbury unreasonableness. Review was distinct from appeal: factual findings had to be accepted unless there was no basis for them, and the reviewing court could not substitute its view of the merits. An error of law would normally require remittal, unless only one decision was legally available.
4. There was no error of law in the Tribunal’s approach. Even on the employer-time approach, the evidence about approval of leave would not have supported dismissal under UTech’s disciplinary code. The appeal was dismissed. Costs submissions were invited within 21 days.

• Privy Council: Appeal dismissed; the Board upheld the Court of Appeal’s conclusions on the Tribunal’s jurisdiction and judicial review.
• Court of Appeal of Jamaica: Appeal allowed and the Industrial Disputes Tribunal’s award restored.
• Supreme Court of Jamaica: Mangatal J granted certiorari and quashed the Tribunal’s award.