The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Industrial Tribunal “cannot go behind” a Minister of Labour’s decision to refer a trade dispute to it, even if the process is non-compliant with the law, the Court of Appeal has ruled.

Appeal Justice Jon Isaacs, in a unanimous verdict backed by his two fellow judges, found that the Industrial Tribunal had to accept trade dispute referral certificates “at face value”, rather than determine whether these were “duly made”.

His decision stemmed from an employment dispute involving Corrine Higgins, who was terminated from her job by then-Atlantis owner, Kerzner International, on July 8, 2007.

She filed a trade dispute against Kerzner’s subsidiary, Island Hotel Company, more than one year later, on July 30, 2008.

And, after several failed conciliation hearings at the Department of Labour, the minister of labour ultimately referred the dispute to the Industrial Tribunal “just under two years later”.

However, them-vice-president of the Tribunal, Indira Demeritte-Francis, dismissed Ms Higgins’ application on the grounds that the matter “appeared to be statute barred” and therefore could not be heard.

Ms Demeritte-Francis based her decision on section 68(2) of the Industrial Relations Act, which stipulates that a trade dispute must be reported to the Minister of Labour within 12 months of the matter first arising.

Ms Higgins and her attorney, Obie Ferguson, argued, though, that the Industrial Tribunal cannot “go behind the Minister’s certificate”.

Kerzner International and its attorney, Ferron Bethel, countered by saying that the dispute was “three weeks outside of the relevant limitation period” when it was reported to the Department of Labour.

“The respondent contends that the decision of vice-president Francis is correct because the appellant’s claim was made late, that is, outside the time limited for such a claim; and no evidence was produced to prove that the Minister had extended the time within which to make the claim,” Appeal Justice Isaacs said of Kerzner’s position.

He found, through, that while the Industrial Relations Act barred “late claims”, the Minister of Labour was able to extend this period, and there was nothing to bind him/her in how they did this.

“The Record of Appeal reveals that the appellant’s notice informing the Minister of the existence of a trade dispute was filed with the Labour Department on 30 July, 2008,” Appeal Justice Isaacs found.

“By a Conciliation Notice dated 14 August, 2008 (some 14 days later)......., both parties to the trade dispute were formally advised of the Minister’s wish to secure a settlement and invited to attend a conciliation meeting on 26 August, 2008.

“The Record of Appeal also discloses the existence of no less than five additional Conciliation Notices issued to the parties, signalling the minister’s continuing endeavours to settle the dispute by means of conciliation meetings convened under the Act. The last of these Notices was issued on 10 September 2009.”

Appeal Justice Isaacs said the documents showed the Minister of Labour was dealing with the dispute “in a manner which was completely inconsistent with it having been statute-barred”.

“Indeed, it can reasonably be concluded...... that the Minister had more likely than not exercised his discretion to extend the time for filing of the complaint,” he found.

The Court of Appeal found that the Industrial Tribunal did indeed have the jurisdiction to hear the case, and drew on a previous verdict in ruling: “The Tribunal ought to accept the referral certificate of the Minister at face value; it cannot go behind the certificate to determine whether the referral was duly made.

“In essence, it is the referral by the Minister which gives the Tribunal the jurisdiction to hear and determine the dispute.”