The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Freeport business yesterday vowed “to go to the Privy Council” over “procedural irregularities” by the Industrial Tribunal that have allegedly undermined its constitutional protections and rights.

Jacy Whittaker, attorney for Albury’s Freeport which trades as Carquest, told Tribune Business his client is prepared to plead its case before the highest body in the Bahamian judicial system after the Supreme Court last week rejected its claim that the Industrial Tribunal has no legal authority to hold case management hearings.

He spoke out after Stephen Albury, Carquest’s majority shareholder, in a June 14, 2024, affidavit voiced misgivings that the Industrial Tribunal is “biased” against employers and gives labour advocates and employees “certain leniencies and flexibilities” that are not granted to companies.

“Throughout these proceedings, there has been a noticeable pattern in the Industrial Tribunal’s approach, which appears to afford labour advocates certain leniencies and flexibilities not equally extended to corporate defendants like ourselves,” Mr Albury alleged. 

“This imbalance is evident in the Industrial Tribunal’s readiness to accept less than precise pleadings from labour advocates while simultaneously holding corporate defendants to a stricter standard. Such disparities not only raise questions about the impartiality of the Industrial Tribunal but also suggest a bias that undermines the principle of equality before the law.

“The Industrial Tribunal’s apparent preferential treatment has manifested in allowing labour advocates to proceed with vague and inadequately particularised claims, thereby placing an undue burden on corporate defendants to decipher these claims without sufficient detail,” Mr Albury continued.

“This not only complicates our ability to mount a comprehensive and informed defence, but also tilts the procedural balance unfavourably against us.... The uneven application of procedural standards suggests a bias that favours one class of litigants over another, which is contrary to the principles of justice that should guide all judicial proceedings.

“Such conduct by the Industrial Tribunal not only undermines its role as a neutral arbiter but also casts doubt on the reliability and integrity of the legal process. It is essential for the Industrial Tribunal to operate without bias, ensuring that all parties are treated with equal rigor and fairness according to the law,” the Carquest chief added.

“The Industrial Tribunal’s role should not be to facilitate an easier path for any particular group through lax procedural enforcement but to maintain an equitable balance where both labour advocates and corporate entities are held to the same standards.”

Carquest’s action, which could have significant consequences for the processes and procedures used by the Tribunal to manage hundreds of employment-related disputes if it ultimately prevails, was nevertheless dismissed by Justice Andrew Forbes at the first hurdle.

His October 25, 2024, verdict ruled that the company’s move was tantamount to “abusing the process” of the Supreme Court because it sought to create a constitutional claim where no basis for such an action exists. Besides finding that Carquest has an alternative way to redress its grievances via the Court of Appeal, he added that its case was designed to also “circumvent the statutory framework” of the Industrial Relations Act.

Undaunted, Mr Whittaker, a partner in the Parris Whittaker law firm, told this newspaper: “We will be appealing the ruling. We think this is an important issue that needs to be determined because companies have a right to protection in The Bahamas just as individual Bahamians enjoy that right. 

“It shouldn’t be a one-sided affair. We want them [the Industrial Tribunal] to follow the rules just like everybody else. We intend to go to the Privy Council if necessary.” Carquest’s argument is that, by failing to follow the Industrial Relations Act and processes stipulated in the Industrial Relations (Tribunal Procedure) Rules 2010, the Industrial Tribunal has undermined its “right to a fair hearing” and other constitutional protections.

The claim, in which the Freeport-based business sought a Supreme Court declaration that the Industrial Tribunal’s conduct “violated the constitutional protections” it enjoys along with an Order that it “comply with procedural norms”, arose from three separate cases that were launched against it in March 2024 by ex-employees. It named as defendants the attorney general, minister of labour and Industrial Tribunal vice-president.

Siyyd Campbell, Garinique Williams and Patrick Adderley had all claimed for “wrongful dismissal and unfair dismissal”, while also seeking compensation for due wages, notice pay, severance and alleged “unlawful suspension” and “wrongful salary deductions”.

Carquest, though, demanded that it receive better details and specifics on the nature of their claims. In a March 22, 2024, letter to the Industrial Tribunal it warned that it would be unable to file a defence to the Campbell action within the required 14 days unless these were provided to it.

The extra details were eventually provided on April 9, 2024, but Carquest argued that these were still inadequate for the purposes of providing a defence. The Industrial Tribunal, though, took a different view. A week later, it supplied the company with a ‘Form J - notice of hearing’ and said it was setting the complaints down for a case management hearing.

The exact same sequence of events occurred with the Williams and Adderley claims. In all three cases, this prompted Mr Whittaker to voice concerns to the Industrial Tribunal on his Carquest’s behalf that the company’s request for extra time to file its defence was not being addressed.

“This oversight not only disrupts our ability to provide adequate representation for our client but also raises significant concerns regarding procedural fairness,” Mr Whittaker wrote on May 14, 2024. “Moreover, we believe this constitutes a violation of our client’s right to a fair trial as enshrined under Article 20 (8) of the Bahamas constitution, which guarantees the right to a fair hearing within a reasonable period of time by an independent court.

“The Tribunal’s failure to respond to our extension request before proceeding with case management directives suggests a lack of due process, indicating procedural unfairness. Furthermore, by advancing the proceedings without addressing our legitimate request for additional preparation time, the Tribunal risks compromising the fairness and integrity of the judicial process.”

The Industrial Tribunal, which was created to provide a less costly and formal mechanism to adjudicate employment disputes, wrote back stating it would proceed with the case management hearings. This stance prompted Mr Whittaker to challenge this process, arguing that it was holding the case management hearing “under the guise” of the Form J that only provides for it to hear the substantive case.

“This procedural approach is problematic, not only because it appears to diverge from the Industrial Relations Procedure Tribunal Rules 2010 but also because it raises significant concerns regarding procedural fairness - a cornerstone of our legal system enshrined in the constitution,” Mr Whittaker said.

He added that Form J is specifically used to notify parties before the Industrial Tribunal of the substantive hearing, and argued: “By using this form for a different purpose than what is statutorily prescribed [in the Industrial Relations Act], the Tribunal may be seen as blurring the lines between procedural management and conciliatory efforts.

“This approach could potentially compromise the clarity and predictability of the Tribunal’s proceedings, which are fundamental to ensuring fairness and procedural integrity. The deviation to utilise this form for a case management hearing - particularly in a context that suggests an undertone of reconciliation rather than adjudication - disregards the principles of procedural fairness....

“Misapplying procedural rules not only undermines the integrity of the Tribunal’s proceedings but also potentially prejudices our client’s ability to prepare and present a defence adequately.” Mr Whittaker urged the Industrial Tribunal to “revisit and realign” its procedures in line with what is stipulated by law in the Industrial Relations Act and also in its rules.

However, the Industrial Tribunal countered on May 28, 2024, that it typically conducts a case management hearing for most claims and uses Form J to notify both sides when this is to occur. It also argued that its rules permit it “at any time, and of its motion, to give directions on any manner arising in connection with the proceedings”, while adding that it often grants extensions of time if a good reason is given.

Carquest filed its constitutional challenge with the Supreme Court two days later on May 30, 2024, while alleging that the Industrial Tribunal’s decision to proceed with the case management hearing “demonstrates a potential bias and apparent disregard for the ongoing constitutional matters”.

Justice Forbes, in his October 25, 2024, ruling summed up the company’s case as one where alleged “‘procedural irregularities’ exhibited by the Industrial Tribunal have impacted the fairness of the proceedings against the claimants”.

“Specifically, the utilisation of Form J (notice of hearing) beyond the intended use prescribed by rule 8(2); misapplication of rule 15(1) by the Tribunal setting down case management hearings without clear statutory authority; the use of Form J in the manner the Industrial Tribunal had done contradicted the established procedural framework and leads to significant confusion and potential unfairness,” Justice Forbes added.

“And that the Industrial Tribunal’s reliance on past practices and certain judicial decisions should not extend beyond their explicit boundaries. That the deviations from the Industrial Relations (Tribunal Procedure) Rules 2010 compromise procedural fairness.

“The claimants request the court to make a declaration that the actions of the Industrial Tribunal have contravened the constitutional rights of the claimants, and issue specific orders mandating the Industrial Tribunal to adhere strictly to established procedural norms.”

Helen Almorales Jones, the Industrial Tribunal’s Freeport-based vice-president, said in affidavit evidence supplied to the Supreme Court that “the Tribunal is a creature of statute and must follow the statute and rules that empower and govern it”.

However, she added that “the application before this court is premature and misconceived, and that there was no breach of the Industrial Relations Act nor Rules. That the insertion of the words ‘case management’ on Form J does not amount to an irregularity nor lead to a breach of the claimant’s constitutional right to a fair hearing”.

“She believes that the Tribunal’s refusal to direct the [ex-employees to provide more specifics], and to hear and determine the application inter-partes, spurred this challenge before the court,” Justice Forbes added of the vice-president’s evidence.

The judge, finding against Carquest, said the Bahamian constitution’s provision in article 28 (3) that the Supreme Court must decide all constitutional-related grievances does not apply if the parties have an alternative “adequate means of redress”.

The Freeport-based business, he added, has just such an avenue via the Court of Appeal. And Justice Forbes noted that section 70 in the Industrial Relations Act’s fourth schedule “blatantly disallows” the Supreme Court from challenging, reviewing or quashing any Industrial Tribunal decision.

“This court is of the view that the claimants seemingly framed the argument as a constitutional claim in an effort to circumvent the statutory framework clearly stated in the [Industrial Relations] Act in an effort for the court to review the matter, which it cannot,” Justice Forbes ruled.

“Moreover, had the court had the jurisdiction to do so, there is an adequate remedy in the form of an appeal to the Court of Appeal at the conclusion of the matters in the Tribunal. Should the conclusion of the matters in the Tribunal not be favourable, parties are to appeal to the Court of Appeal per the Industrial Relations Act and not abuse the process of the court by creating a constitutional claim that does not meet the Article 28 proviso requirements. The court therefore dismisses this application.”