IN THE HIGH COURT OF JUSTICE BETWEEN AND THE MINISTEROF LABOUR AND SMALL AND MICRO ENTERPRISE DEVELOPMENT

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1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN NATIONAL TRANSPORTATION CO-OPERATIVE SOCIETY LIMITED APPLICANT AND THE MINISTEROF LABOUR AND SMALL AND MICRO ENTERPRISE DEVELOPMENT RESPONDENT BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER APPEARANCES Mr. K. Neebar for the Applicant. Mr. C. Hamel-Smith & Mr. M. Quamina for the Respondent. JUDGMENT INTRODUCTION This is an application for judicial review. The Applicant, a limited liability company and an employer for the purpose of the Industrial Relations Act 1 ( the Act ), has sought to impugn two decisions of the Minister of Labour and Small and Micro Enterprise Development ( the Minister ). The first was the Minister s decision made pursuant to section 51(1) of the Act to extend time for the referral of a dispute and the second was the 1 Industrial Relations Act Ch. 88:01 Page 1 of 16

2 Minister s decision to issue a Certificate of Unresolved Dispute under section 59 of the Act. In this matter, the Court considered the requirements of fairness as explained by Lord Mustill in R v Secretary of State for the Home Secretary ex p. Doody 2. PROCEDURAL HISTORY 1. By their Application filed pursuant to Part 56.3 of the Civil Proceedings Rules 1998 the Applicant sought leave to apply for the following relief: a. A Declaration that the decision of the Hon Minister of Labour and Small and Micro Enterprise Development to extend time for the Public Services Association to refer a dispute between the Association and the Applicant concerning the alleged wrongful dismissal of Boysie Seuradge Singh from the employment of the Applicant is unreasonable and/or unlawful b. An Order of Certiorari to quash the decision referred to in paragraph (a) above. c. A Declaration that the decision of the Honourable Minister made on the 31 st July 2006 to issue a Certificate of an Unresolved Dispute in accordance with section 59(c) of the Industrial Relations Act Chapter 88:01 is unreasonable and/or unlawful d. An order of Certiorari to quash the decision referred to in paragraph (c) above 2. On 7 th November 2006, the Honourable Justice Narine granted to the Applicant leave to apply for judicial review. 3. This Court heard and refused an application by the Respondent to have leave set th July aside on the ground of delay. My reasons are set out in a ruling dated [1994] 1 AC 531 Page 2 of 16

3 4. Following my ruling the Respondent filed affidavits and the Court directed that the relevant Union, the Public Service Association ( PSA ), be joined in these proceedings. On 3 rd April 2008, the PSA was joined as a Defendant in these proceedings. THE EVIDENCE 1. The evidence in this application was by way of affidavit only. The Court considered the following affidavits: The supporting affidavit of Deonath Khudan filed on 30 th November 2006; two further affidavits sworn by Deonath Kudan in support of the Application filed on 15 th December 2006 and on 21 st December The affidavit of Lincoln Lee Chee filed on behalf of the Respondent on 8 th October The affidavit of Rudolph Boneo filed on behalf of the Respondent on 9 th October The affidavit in reply of Krishendath Neebar filed on 28 th February FACTS 1. The Applicant, a body corporate formed and registered under the Co-operative Societies Act Ch. 81:03, was engaged in the business of transporting gasoline and gas oil. 2. Mr. Boysie Seuradge had, prior to May1999, been a member and shareholder of the Applicant. On 18 th May 1999, Mr. Seuradge was suspended from the performance of his duties as a result of allegations of misconduct which had been made against him. On 6 th October 1999, Mr. Seuradge s services were eventually terminated. 3. On 26 th October 1999, the PSA requested a meeting with the Applicant s Board of Directors. This meeting never came to pass. Page 3 of 16

4 4. On 31 st March 2000, several days after the deadline specified at section 51(3) 3 of the Act, the PSA wrote to the Minister seeking to refer the dispute between itself and the Applicant. 5. On behalf of the Minister, the Permanent Secretary in the Ministry of Labour and Cooperatives wrote to the PSA on 17 th April 2000, drawing its attention to section 51(3) of the Act. 6. On 8 th August 2000, the Permanent Secretary again wrote to the PSA seeking reasons for its delay in reporting the dispute. The Permanent Secretary later solicited the comments of the Applicant by a letter dated 29 th November In particular, the Permanent Secretary requested of the Applicant: Any comments and or objections to the Union s request for an extension of time. 7. Attorney-at-law Mr. Krishendath Neebar responded to the letter of the Permanent Secretary in his letter of the 3 rd December, In his letter, Mr. Neebar placed on record the Applicant s strong objection to the PSA s request to an extension of time. Mr. Neebar noted further that the Applicant had not been supplied with the Union s grounds in support of its request. The following is an extract of Mr. Neebar s letter: I wish to place on record that the society strongly objects to the Union s request for an extension of time This matter is over three years old and was not reported within the six month period stipulated by section 51(3) Ch. 88:01. The passage of such a long period of time in excess of the stipulated period would quite naturally and quite legitimately have caused my client to expect that the matter had come to an end. Additionally, the society took certain irrevocable steps on that basis (3) A trade dispute may not be reported to the Minister if more than six months have elapsed since the issue giving rise to the disputes first arose, save that the Minister may, in any case where he considers it just, extend the time during which a dispute may be so reported to him. Page 4 of 16

5 8. In response to Mr. Neebar s letter, the Permanent Secretary sought the comments of the PSA. 9. Having received no response to his 3 rd December 2002, letter Mr. Neebar again wrote to the Permanent Secretary by letter dated 14 th February The Permanent Secretary again wrote to the Applicant by letter dated 27 th March 2003, once again seeking comments. On 29 th April 2003, the Permanent Secretary requested a reply to the March, 27 th letter. 11. In response, Mr. Neebar replied on 14 th May In this letter, Mr. Neebar reiterated his strong objection to the PSA s request for an extension of time and also noted that the Applicant had not received any reason for the Union s prolonged delay in making the report. Mr. Neebar wrote: [As] a result my client is unable to properly and/or adequately consider your request for comments or objections. 12. The Applicant alleges that their Attorney-at-law, in the month of December 2005, visited the office of the Respondent s Ministry and discovered that the dispute had been accepted by the Minister. In response, the Applicant through its Attorney Mr. Neebar, sought reasons for the Minister s decision to extend time. 13. The Permanent Secretary eventually responded by letter dated 7 th August The salient parts of this letter are set out below: I am further directed to inform you that the union s reasons for delay are contained in its letter of November 22, 2002, which was sent to you on March 27, the Minister after considering the submissions made by the respective parties in this matter exercised the authority vested in him under section 51(3) of the Industrial Relations Act Chapter 88:01, and extended the time within which the union could report the matter as a Trade Dispute. Page 5 of 16

6 The dispute was subsequently reported by letter dated October 14, 2005 and there being no agreement to extend the time the Minister issued an Unresolved Certificate. EVIENCE FOR THE RESPONDENT 14. Rudolph Boneo, Acting Senior Labour Relations Officer, swore an affidavit which was filed on behalf of the Respondent on 9 th October, Mr. Boneo deposed that his review of the relevant file suggested that the report was out of time by one day. 16. Mr. Boneo also referred to the 22 nd November 2002, letter of the PSA which identified the reason for delay as their attempt to resolve the matter bilaterally. Mr. Boneo referred to the letter of 29 th November, 2002 from the Ministry requesting the comments of the Applicant, as employer. 17. Mr. Borneo referred to and exhibited the employer s letter of 3 rd December This letter was also exhibited to the affidavit of Deodath Khudan. 18. The Ministry sought the comments of the PSA, who responded in a letter of 24 th January This letter was exhibited as R.B.8 and stated: The Employer spurned every offer made by Mr. Seuradge Singh and this Union to resolve this dispute amicably via bilateral discussions. Moreover, the Employer has refused or failed to compensate Mr. Seuradge even for his many years of service. 19. Mr. Boneo stated that on 14 th February 2003, he considered the application and advised that the extension be granted. 20. In March 2003, Mr. Boneo discovered that he had omitted to forward letters dated 4 th March 2003 and 22 nd November 2003 to the Employer. This was done under cover of Page 6 of 16

7 a letter dated 27 th March 2003, in which the Ministry set a deadline of 16 th April Mr. Boneo stated that on 10 th January 2005, he advised that the extension be granted. This was done on 22 nd July LAW 1. The Industrial Relations Act Ch. 88:01makes provisions for procedures to be followed in the event of disputes between employers and Unions. 2. By section 51(1) a trade dispute which has not been determined or resolved may be reported to the Minister by the employer, the recognized majority union, or if there is no union, by the worker. 3. Subsection (3) establishes the time within which a dispute should referred: A trade dispute may not be reported to the Minister if more than six months have elapsed since the issue giving rise to the dispute first arose, save that the Minister may in any case where he considers it just extend the time during which a dispute may be so reported to him. Section 51(4) provides: For the purpose of the exercise of his discretion to extend the time during which a dispute may be reported to him the Minister may refer to the Court any question arising on the exercise of such discretion for its recommendation and advice 4. Section 59(1) of the Act empowers the Minister to issue a certificate of an unresolved dispute in this way: A dispute reported pursuant to section 51(1) that remains unresolved after the time within which the Minister may take steps by means of conciliation to secure a settlement... shall be so certified in writing by the Page 7 of 16

8 Minister and notice thereof served on the parties to the dispute and the Minister may state any reasons which in his opinion have prevented a settlement 5. A decision which may be set aside on the ground of unreasonableness must be shown to meet the Diplock test of irrationality, that is to say, one that is so outrageous in its defiance of logic and accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it This test has been described as notoriously high. The ground is established only if the Minister could be regarded as having taken leave of his senses In respect of the ground of the breach of natural justice, the Claimant cited and relied on the Privy Council decision in Barl Naraynsingh v The Commissioner of Police 6. In Naraynsingh their Lordships relied on the statement of Lord Mustill in R v Secretary of State for the Home Secretary ex p. Doody 7. At page 560 Lord Mustill said: What does fairness require in the present case? My Lords I think it unnecessary to refer by name or to quote from any often-cited authorities in which the Courts have explained what is essentially an intuitive judgment. From them I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time both in the general and in their application to decisions of a particular type. (3) The principles are not to be applied by rote identically in every situation. What fairness demands is dependant on the context of the decision, and this is to be taken into account in all its aspects. (4) An 4 Council of Civil Service Union v Minister of the Civil Service [1985] AC 410G 5 R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 247H 6 Privy Council Appeal No. 42 of [1994] 1 AC 531 Page 8 of 16

9 essential feature of the context is the statute which creates the discretion as regards both its language and the shape of the legal and administrative system within which the decision is to be taken. (5) Fairness will very often require that a person who may be adversely affected will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken with a view to procuring its modification; or both. (6) Since the person affected cannot make worth while representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer Barl Naraynsingh v The Commissioner of Police 8 8. Barl Naraynsingh applied for judicial review of a decision of the Commissioner of Police to revoke his Firearm Licence. He had, for many years, been the holder of a firearm user's licence when his home was searched for the purpose of executing an order of the Petty Civil Court. On this occasion a second unlicenced gun was allegedly found. The criminal charges which were laid against Mr. Naraynsingh were eventually dismissed because of the failure of the complainant to appear. Nonetheless, the Commissioner of Police wrote to Mr. Naraysingh drawing to his attention the fact that not withstanding the dismissal of the charges against him, the fact remained that a firearm and ammunition were found on his premises. The Commissioner of Police gave him an opportunity to respond in writing within fourteen days. 9. Mr. Naraynsingh responded by way of a Solicitor s letter. His Solicitor indicated that Mr. Naraysingh maintained that the firearm did not belong to him. The Commissioner of Police responded in writing that he was not aware why anyone would wish to frame Mr. Naraynsingh. The Commissioner of Police also considered a report submitted by Senior Superintendent Christopher. 8 Privy Council Appeal No. 42 of 2003 Page 9 of 16

10 10. Lord Brown of Eaton-Under-Haywood, at paragraph 16 of the judgment, quoted the words of Lord Mustill in Ex p Doody 9 and rejected the suggestion that Mr. Naraysingh was entitled to an oral hearing. Nonetheless, their Lordships allowed Mr. Nayansingh s appeal and held that the Commissioner of Police ought to have conducted further investigations. Lord Brown of Eaton-under-Haywood said at paragraph 21: Further enquiries plainly could and should have been made. They should have been made long before P.C. Legendre retired. 11. Creednz v Governor General 10 was a decision of the Court of Appeal of New Zealand. In that case, the Plaintiffs challenged the validity of the National Development Order (No. 2) of 1981, an Order in Council which had been made under the Traditional Development Act The Order in Council applied to an aluminum smelter and associated works and its effect was to enable normal statutory procedures to be superceded by a single planning tribunal. 12. The Plaintiffs contended that property owners were entitled to see the application and entitled to a reasonable opportunity of making written submissions on it before the Council decided to advise the Governor General to make the Order. 13. The Court of Appeal held that the Court could not import into the scheme of the National Development Act 1979 any implied procedural duty that property owners affected were entitled to a hearing before the Executive Council decided to advise the Governor General to make the Order in Council. 9 Supra at n [1981] 1 NZLR 172 Page 10 of 16

11 Legitimate Expectation 14. In order to establish the existence of a legitimate expectation, the Applicant must point to the existence of a regular practice or to an express promise made by the decision maker 11. REASONING & DECISION 1. The Applicant, a limited liability company, seeks an order of certiorari to quash the decision of the Minister to exercise his discretion to extend the time within which a dispute could be reported under section 51 of the Industrial Relations Act. 2. The Court reminds itself that it does not fall to the Court to substitute its own views for that of the Minister s. The Court, in these proceedings is restricted to examining the decision-making process. 3. The first ground upon which the Applicant seeks judicial review is that the Minister s decision is unreasonable or irrational. Authorities in respect of the ground of irrationally have spoken with one voice as to the high threshold to be met before a Claimant succeeds on this ground. The Court is required to consider whether a Minister exercising discretion to extend time, when it is just to do so, acts perversely or acts as though he has taken leave of his senses, where the extended deadline is some five years and six months after the time prescribed by the statute. 4. The Court ought to consider as well whether the prospect of irrationality is heightened by the obvious prejudice to the employer by the extended delay. The Minister had before him a record of strong objections on the part of the employer including an intimation that they took irrevocable steps on the basis of an expectation that the matter had come to an end. 5. In submissions, the Applicant omitted to put forward arguments to suggest why the Minister should be regarded as having taken leave of his senses. The Court, 11 CCSU v Minister for the Public Service [1985] 1 AC 401B per Lord Fraser. Page 11 of 16

12 nevertheless, considered whether the Minister s decision was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it The Court accepts that the prospect of reviewing a dispute after five years could be described as outrageous. The mere passage of time would place available evidence beyond the reach of both parties and would dull the memories of witnesses who may have been helpful in resolving the dispute. In my view, however, the decision could not be described as defiant of logic or accepted moral standards. The Minister had a broad discretion under section 51(1). He was required to consider what was just in the circumstances. Invested with this broad discretion there would be a spectrum of reasonable decisions. Within that spectrum, there may be decisions which may be regarded as undesirable, or even outrageous, but which do not fall beyond the pale of reasonable decisions into the category of decisions which no sensible person who applied his mind to the question would have made. 7. Accordingly, on the ground of irrationality, I find for the Respondent. 8. In my view, the Applicant also fails on the ground of legitimate expectation. The Claim was manifestly lacking in any evidence of either an express promise or a settled practice. 9. The last remaining ground is that of unfairness. Having regard to the words of Lord Mustill in Ex p. Doody 13, the Court considered whether any part of the decisionmaking process from the March 2000 application of the PSA to the final decision in July 2005 could be vitiated on the ground of unfairness. 10. The decision of the Court of Appeal of New Zealand in Creednz 14 held that the judicial review court ought not to import a right to be heard into a statute, which did 12 Supra at n Supra at n Supra at n. 10 Page 12 of 16

13 not provide for an opportunity to be heard. This Court is by no means bound by Creednz, which also does not purport to establish principles of general application. Rather, this Court is guided by the words of Lord Mustill in Ex p. Doody, which were expressly adopted and followed in Barl Naraynsingh v The Commissioner of Police Accordingly, the Court will begin with the presumption that the power which was invested in the Minister by section 51(1) should be exercised fairly. In so far as fairness requires that the Applicant be given an opportunity to be heard, the opportunity may not require a full oral hearing, but may be by way of written correspondence. 12. In this application, the Applicant was afforded an opportunity to present its written representations in respect of the decision to extend time. Though late in doing so the Ministry also informed the Applicant of the case it had to answer when the Ministry forwarded the reasons for delay provided by the PSA Lord Mustill in Ex p. Doody suggested that fairness may also require that a person adversely affected by a decision be afforded an opportunity to make representations after the decision was made. The words of Lord Mustill set out above are repeated hereunder: Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken or after it is taken with a view to procuring its modification; or both 14. In the instant Claim, the Claimant has alleged without contradiction that it became aware of the decision purely by chance, in that, Mr. Neebar, who was present at the Ministry in respect of other business, happened to hear of the decision. Mr. Boneo in 15 Supra at n See Para. 15 of the affidavit of Rudolph Boneo filed 9 th October Page 13 of 16

14 his affidavit filed on behalf of the Respondent on 9 th October 2007, has not sought to contradict the Applicant. Accordingly, it must be regarded as an established fact that following the decision of the Minister in July 2005, no attempt was made to provide the Applicant with official notification of the decision. 15. The principles of fairness are not to be applied by rote and essentially remain an intuitive decision 17. A failure to notify a party of a decision does not automatically produce a finding of unfairness. The Court is required to consider all the circumstances. 16. In my view, the Respondent acted unfairly in this case by failing to notify the Applicant of his decision to extend time. The Applicant had protested as to the length of time which had passed and had informed the officials at the Ministry that the Applicant had taken irrevocable steps on the basis of the delay. A prompt official communication of the decision would have enabled the Applicant, not only to make representations, but to take steps to mitigate the impact of the decision. Accordingly, it is my view, and I hold, that the Minister acted unfairly in failing to notify the Applicant of his decision to extend time. 17. A similar finding is inevitable in respect of the second impugned decision to issue a Certificate of Unresolved Dispute. The steps taken by the officials of the Ministry are set out in the affidavit sworn by Lincoln Lee Chee and filed herein on 8 th October The testimony of Mr. Lee Chee demonstrates unequivocally that in respect of the section 59 decision the Applicant was given neither an opportunity to be heard before the Application nor after it. RELIEF 1. Having decided that the Respondent had acted unfairly in respect of both the section 51(1) decision and the section 59 decision, the Court must consider whether to grant relief. Relief in judicial review proceedings is always discretionary. The Court must 17 R v Secretary of State for the Home Secretary Ex. p Doody [1994] 1 AC 560E, per Lord Mustill Page 14 of 16

15 consider whether to withhold its discretion by reason of one or more of the discretionary bars. 2. In respect of the Respondents contention as to delay my views remain the same as those expressed in the ruling on the Respondent s application to set aside leave delivered on 17 th July Accordingly, it remains my view that relief ought not to be refused on the ground of delay. 3. The Court has considered, however, that an Order of Certiorari will have the effect of prolonging an already unacceptably long delay. The unfairness in respect of the section 51(1) decision related to the post-decision phase. The Minister had before him the letter dated the 3 rd December 2002, written by Mr. Neebar. There is nothing in the evidence to suggest that the Minister omitted to consider this letter. I wish to observe in passing, however, that the evidence on behalf of the Respondent disclosed the reasoning not of the decision-maker, but of his advisers. In this way the Respondent fell far short of the standard of approaching the Court with all its cards turned up 18. Should this Court grant an Order of Certiorari on the ground of postdecision unfairness, it is not far-fetched to predict that there would be no modification to the decision and there would be further delay which would operate to the prejudice of all concerned, including the Applicant. Accordingly, in my view an Order of Certiorari would not serve a useful purpose and would also be detrimental to good administration. 4. My views are similar in respect of the decision to issue the section 59(1) certificate. 5. Accordingly, this Court will refuse the Order of Certiorari. In order, however, to avoid the result that the Respondent has benefited from his own maladministration, in that, the facts suggest that much of the delay was caused by the fault of the Ministry, an award of costs will be made in favour of the Claimant. 18 R (on the application of Huddleston) v Lancashire County Council [1986] 2 All ER 945 per John Donaldson MR. Page 15 of 16

16 ORDER 1. The Respondent do pay to the Claimant the costs of and associated with this Claim. Dated this 30 th day of June, Mira Dean-Armorer Judge Page 16 of 16