The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal's president is urging that the Industrial Tribunal's rules be reformed such that all parties have "greater flexibility" to amend their original pleadings within the limits set by the 'trade dispute' originally referred to it.

Sir Michael Barnett made the call in a unanimous verdict where the Court of Appeal reinstated a claim by Marisa D. Mason-Smith, now the University of the Bahamas (UoB) ombudsman but then an assistant general manager for human resources and training at Bahamas Power & Light (BPL), against her former employer over alleged pension benefits she claims she is entitled to.

The Industrial Tribunal dismissed her action on the basis that it had no jurisdiction to hear the dispute, as the issues and causes raised in Ms Mason-Smith's originating application claim did not include the grounds on which the case was referred to it by the minister responsible for labour as a trade dispute.

However, in overturning the Industrial Tribunal verdict and sending the matter back for a new hearing on "what, if any" pension benefits she is entitled to, Sir Michael suggested that its rules be amended to address the problems that were raised.

"We observe that many of these issues may be resolved by amending the Industrial Tribunal Rules to permit both an applicant and a respondent to amend his originating application and/or defence save that any amendment ought not exceed the parameters of the 'trade dispute' which was originally reported to the minister under the Industrial Relations Act," Sir Michael suggested.

"The proposed amendment which we envisage would allow for greater flexibility and enable the parties to amend their pleadings... provided that the referred dispute to be adjudicated by the Tribunal is clearly shown on the amendment to be 'connected with the employment or non-employment or the terms or conditions of employment of any person'. This would enable a general dispute about termination to be refined at a later date to encompass both a wrongful and/or unfair dismissal claim."

Sir Michael, in his written ruling, said: "In our judgment it is clear that Parliament intended the Tribunal to focus on the merits of the disputes and not be constrained by formality and niceties of pleading as may be found in matters in the Supreme Court.

"The Tribunal is to 'avoid formality' and is not bound by rules relating to the admissibility of evidence. Indeed, the Tribunal is not even obliged to determine the dispute but may 'remit a dispute... to the parties for further consideration by them with a view to settling or reducing the several issues in dispute'.

"The Tribunal is a different kind of forum for determining disputes in employment matters," Sir Michael continued. "In my judgment the vice-president erred in determining that the Tribunal had no jurisdiction by focusing simply on the language of the originating application. In construing what was the dispute the Tribunal is required to determine, the Tribunal cannot simply look at the originating application.

"The Tribunal, in our judgment, must look at the trade dispute which was reported to the minister,. It is that dispute which is referred by the minister to the Tribunal. In our judgment it is that dispute which gives the Tribunal jurisdiction, not simply the originating application. The originating application must be construed against the background of the trade dispute reported to the minister and which dispute was referred by the minister to the Tribunal.

"This is not to suggest that an applicant in the Tribunal is not bound by his ‘pleading’ in the originating application. The applicant is bound and cannot pursue a claim that is not contained in his originating application. But, where there is some ambiguity as to the claim being made, the Tribunal is entitled and - in my judgment, ought to look at the trade dispute reported pursuant to section 68 - to clarify any ambiguity. It is that dispute which was referred to the Tribunal by the minister."