Mitoonlal Persad & another v Registration, Recognition and Certification Board

Where access to a specialist Industrial Court depends on a worker being a union member in good standing, the statutory board may assess what constitutes sound accounting procedures and what evidence is sufficient. It may adopt and publish a policy to guide that assessment, but must retain a genuine ability to consider exceptions. A document list may be cumulative without making a bank account an inflexible statutory precondition.

Ouster provisions protecting the board’s decisions exclude review of matters within its functions, subject to errors going to jurisdiction and breaches of natural justice. A separate procedural failure is immaterial where an independent ground sufficiently supports the decision. Proportionality review is unavailable within the ouster, and access to the specialist court is conditional where ordinary courts remain available.

Mr Persad was dismissed by Royal Bank of Canada and sought to challenge the dismissal as unfair. The Sanctuary Workers’ Trade Union reported the dispute, but the employer questioned whether Mr Persad was a member in good standing under the Industrial Relations Act. The Registration, Recognition and Certification Board decided that he was not, principally because the union had no bank account and had not produced the evidence required by Practice Note No 2.

The High Court allowed judicial review. The Court of Appeal allowed the Board’s appeal and dismissed the claim. Before the Privy Council, the central issues were whether the Practice Note had been misinterpreted or rigidly applied, whether the Board had breached natural justice, and whether the Act permitted review on proportionality grounds.

The appeal was dismissed unanimously. The Registration, Recognition and Certification Board was entitled to conclude that the statutory requirements for membership in good standing had not been satisfied.

1. Statutory discretion and Practice Note No 2. Section 34(3) of the Industrial Relations Act required the Board to form its own judgment on whether the union had followed sound accounting procedures and practices. Practice Note No 2 was lawful guidance issued for transparency and good administration. Read as a whole, its paragraph 3 listed cumulative records and evidence. The Board was therefore entitled to expect the documents listed, including cash books or day books and bank books or deposit slips.
2. Fettering of discretion. A body exercising an unqualified discretion may adopt a policy, but must retain the ability to consider exceptions. That principle was applied from British Oxygen Co Ltd v Board of Trade [1971] AC 610 at 625 and R (DJ) v Welsh Ministers [2020] PTSR 466 at para 68. The Board’s request for an explanation for the absence of a bank account, and its consideration of that explanation, showed that the policy was not mandatory and had not unlawfully fettered its discretion.
3. Natural justice. The correspondence gave the union an opportunity to address the bank-account issue, and its president provided an explanation. The failure to invite submissions on the alleged breach of the union’s own rules was immaterial because the bank-account issue, together with the explanation, independently supported the decision.
4. Ouster provisions. Sections 23(6) and 23(7) excluded court review of matters within the Board’s functions, subject to jurisdictional error and breaches of natural justice. The Board applied the formulation in Aviation Communication and Allied Workers Union v Registration, Recognition and Certification Board 13 October 1998 (Civil Appeal No 35 of 1995), as later reiterated by the Court of Appeal. Proportionality review was therefore unavailable. In any event, the observation that access to the Industrial Court was conditional, while ordinary courts remained available, provided no basis for a proportionality challenge.

The appeal was dismissed.

1. Privy Council: dismissed the appeal.
2. Court of Appeal of the Republic of Trinidad and Tobago: on 28 September 2022 allowed the RRC Board’s appeal and dismissed the claim; reasons were issued on 3 March 2023.
3. High Court: on 8 November 2021 allowed the judicial-review claim.