IN THE HIGH COURT OF JUSTICE. (Sub-Registry, Tobago) BETWEEN JENNY LIND THOMPSON AND THE TOBAGO HOUSE OF ASSEMBLY AND THE CHIEF PERSONNEL OFFICER

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE (Sub-Registry, Tobago) CLAIM NO. Cv JENNY LIND THOMPSON BETWEEN Claimant AND THE TOBAGO HOUSE OF ASSEMBLY 1 st Defendant AND THE CHIEF PERSONNEL OFFICER 2 nd Defendant Before the Honourable Mr. Justice Prakash Moosai APPEARANCES: Mrs. Deborah Moore-Miggins for the Claimant Mr. Alvin Pascall for the 1 st Defendant Ms. Rachel Thurab instructed by Ms. Reeti Maharajh for the 2 nd. Defendant JUDGMENT 1.0 Introduction 1.1 On December , the Claimant was granted an order for leave to apply for judicial review in respect of a decision of the Defendants not to place her to act in the position of Foreman Other Services, Kalamazoo, Scarborough, maintenance of main roads, (hereinafter referred to as the foreman position ), from the time the opportunity first arose and on any Page 1 of 23

2 and all subsequent occasions. On September , the Defendants applied for leave to set aside the said order. 2.0 The Parties 2.1 The Claimant, Jenny Lind Thompson, was an employee of the First Defendant for around 30 years and worked as a checker in the Division of Infrastructure and Public Utilities (hereinafter called the Division ). 2.2 The First Defendant, the Tobago House of Assembly, is a body corporate having responsibility for the formulation and implementation of policy regarding infrastructure and public utilities in the Island of Tobago. 2.3 The Second Defendant, the Chief Personnel Officer, is the Head of the Personnel Department with the responsibility of negotiating, on behalf of the government and the Tobago House of Assembly, the pay levels and advising and making recommendations on the terms and conditions of service of employees in the public sector. 3.0 The Genesis of the Claimant s application 3.1 On or around August 8, 2001 the Claimant was successful at an interview for the foreman position in the Division and was positioned at number 5 in the order of priority according to a list which came to her attention in late She claims to have been consistently by-passed for acting positions in favour of her juniors namely, Auldith Jones, Selma C. David and Louise Martin Roberts resulting in lost service and earnings and as such, she is entitled to restoration of same. 3.3 The Claimant alleges that she revealed her observations to several seniors but to no avail until one Karen Moore offered and appointed her to the desired position despite being devoid of the requisite authority to do so. Irrespective of this, the Claimant assumed duty on Page 2 of 23

3 May 16, 2006 and stayed in the position for 13 days at which time she was demoted and replaced by Louise Martin- Roberts whose acting appointments for another employee had ended the day before. The said replacement was afforded this opportunity despite her lost service by proceeding on no pay leave. 3.4 By letter dated May 18, 2006 the Claimant wrote to the Chief Administrator of the First Defendant who advised that the matter should be settled with the Division but to her knowledge no communication was dispatched. 3.5 The Claimant s attorney wrote to the Chief Administrator a pre-action protocol letter dated July 3, 2006 asking for the matter to be investigated and resolved. Pursuant to that letter a meeting was convened between the then Administrator and the Division with a view to resolving the matter. 3.6 The said Administrator alleged that the Claimant had been approached and verbally offered the opportunity to act and she refused same which he attributed to her involvement in a much more lucrative exercise in the Division. This contention was vehemently denied by the Claimant who highlighted the fact that there was no documentation to substantiate the alleged conversation. 3.7 A written response was promised but was not forthcoming until the Claimant s attorney again issued oral correspondence at which point the First Defendant, on November 7, 2006, issued a letter which reiterated that which had been expressed at the previous meeting. It however advised that the Division would make attempts to correct any form of assumed discrimination which, according to the Claimant, was suggestive of their intention to advance a proposal to reverse the effects of the discrimination which she claims to have experienced. No such proposal was forthcoming. 3.8 By letter dated January 12, 2007 the First Defendant stated that after giving careful consideration to the matter it had decided to forward the issue to the Second Defendant for a ruling. Page 3 of 23

4 3.9 Subsequently, by letter dated April 2007, the Claimant s attorney forwarded the complaint to the Second Defendant. By letter dated September 28, 2007 the First Defendant indicated that it had not yet received a response from the Second Defendant The Claimant, on the other hand, received correspondence directly from the Second Defendant on September 20, 2007 who, on September 5, 2007, rejected the claim on the basis that the foreman position was not an established position and had not been properly created by Cabinet and, by virtue of this, claims to acting appointments do not arise By letter dated November 26, 2007 the First Defendant conveyed, by the act of drawing a line through the word junior, that it had no intention of acceding to the Claimant s request that it take steps to address her claim The Claimant finds the foregoing to be quite untenable and states that her claim had been made promptly and as soon as she had exhausted all possible grounds for resolution through the internal processes. Further, she claims to have acted reasonably and sensibly as evidenced by the said pre-action letter dated July 3, 2006 after which she allowed the First Defendant ample time to respond to the claim and to fully investigate and rectify the situation On December 17, 2007 the Claimant filed an application for leave to apply for judicial review The Claimant received an order, from this Court, dated and entered on December 24, 2007, in which leave was granted to apply for judicial review based on the application filed The Claimant by fixed date claim form dated and filed February 15, 2008, made an application for judicial review based on the grounds advanced in the previous application for leave. The Defendants, having received notice of the order and the submissions pursuant to same, filed a response thereto. Page 4 of 23

5 4.0 The Defendants reply 4.1 The Defendants contend that it is a condition precedent under Part 56.4 (ii) 1 of the Civil Proceedings Rules (CPR), 1998 that an application for judicial review shall be made within 14 days of the grant. Further, that delay is a high barrier to the grant of leave and relief sought and the greater the delay, the greater the likelihood that an order to quash a decision of a public service or other similar institution may be detrimental to good administration. As such, the order granting leave for judicial review dated and entered on December 24, 2007 should be set aside for failing to comply with Rule 56.4 (ii) of the CPR, 1998 as amended. 5.0 The Second Defendant s application for leave to be set aside. 5.1 The Second Defendant submitted that despite the fact that the Applicant, by virtue of her preaction letter (which according to him was dated November 2006), recognised that there were established grounds for judicial review, she failed to challenge these grounds within three months of the making of the impugned decision. 5.2 The Second Defendant considered that the final, definitive dismissal of the Claimant s claim was the letter of September 5, 2007 and states that even after this she persistently procrastinated in bringing an action. 5.3 Further, that the delay in filing proceedings is unreasonable and unexplained especially in light of the fact that the Claimant had to have been aware of the grounds of the claim as early as 2005 and, in any event, she admits that since February 2006 she had been aware that she was by-passed in favour of her juniors. 1 Leave must be conditional on the applicant making a claim for judicial review within 14 days Page 5 of 23

6 5.4 In spite of the fact that the Second Defendant gave a response on September 5, 2007, the Claimant only applied for leave for judicial review on December 17, 2007 and is at least 14 days outside the maximum limit stipulated. 5.5 Moreover, the delay is compounded by a further abuse of process since according to Part 56.4 (ii) of the CPR, 1998 leave should only be granted on the condition that the Applicant makes a claim for judicial review within 14 days. 5.6 Additionally, the Claimant has failed to bring her action before the proper tribunal, namely, the Industrial Court which possesses the requisite statutory power to deal with matters concerning the enforceability of collective agreements registered under section 47 of the Industrial Relations Act of Trinidad and Tobago. 5.7 By virtue of the foregoing, the Defendant is of the view that this is an appropriate case where leave ought to be set aside. 6.0 The Claimant s submissions in response to the Defendants application for leave for judicial review to be set aside. 6.1 The Claimant argues that the relevant decision is contained in the letter of September 28, 2007 or in the letter of November 26, Further, that the letter of November 2006 which the Second Defendant refers to as the pre-action protocol letter is actually a letter from the First Defendant in which the latter declares its intention to correct the discrimination. 6.2 Moreover, that in any event, the relevant decision maker in this case is the First Defendant not the Second Defendant because the Claimant is employed by the First Defendant to whom the original complaint was directed. The Second Defendant was brought in because of its advisory support given to the First Defendant, who, as the employer, was in a position to either accept or reject the ruling of the Second Defendant and then communicate same to the Claimant/employee. To date the First Defendant has issued no such communication which the Claimant cites as a continuing delay on their part. Page 6 of 23

7 6.3 Furthermore, when the First Defendant appointed the Claimant on November 26, 2007 to the said position which the Second Defendant ruled not to be on the establishment of the First Defendant, the latter can be regarded as itself rejecting the Second Defendant s ruling. 6.4 The Claimant also observed that the Second Defendant s decision of September 5, 2007 did not address the specific contention of the Claimant, that is, that the First Defendant had bypassed the Claimant for the appointment, contrary to the priority list. 6.5 Additionally, the Claimant argues that if the Court is inclined to find that there has been undue delay, the time should be extended since the First Defendant s pursuit of internal inquiries to determine the true facts surrounding the matters complained constitutes good reason. 6.6 Further, the Second Defendant has not demonstrated that the grant of relief would be detrimental to good administration. To the contrary, judicial review of the decision would promote good administration in the following ways: Decisions about the priority list would be made in a more transparent manner; All candidates would be advised as to their grades/ marks and standing on the list within a reasonable time of the interviews; Appointments would be made in accordance with a clear set of guidelines which will be known to candidates before hand; Offers of appointments and refusals of such appointments would be done in writing; Complaints about appointments to the position will be reduced or will be more expeditiously resolved; A clear position would emerge on the issue of the post not being a permanent position on the establishment of the First Defendant and implications of that; Guidance would be provided as to effect of no pay study leave on the right to be appointed to the post. 6.7 As to the contention that an application for judicial review must be submitted within fourteen (14) days of obtaining leave, the Claimant draws the reasoning and application adopted in the Page 7 of 23

8 case of National Transportation Co-operative Society Ltd v Minister of labour 2 to the attention of the Court where a month and a half had elapsed between the applicant obtaining leave and making the review application. 6.8 More compelling, the Claimant submits that the Court does in fact have the power to extend the time for compliance. By virtue of Rule 26.1 (1) (d) of the C.P.R. 1998, under the rubric, The Court s general powers of management As to the question of whether the Court has the jurisdiction to hear the matter, the Claimant contends that the Joint Collective Negotiating Agreement is a registered agreement under the Industrial Relations Act and said agreements are deemed not to constitute a trade dispute and therefore do not need to be adjudicated upon by the Industrial Court. 7.0 Broad Issue 7.1 Whether leave ought to be set aside at this stage, on the ground that the Claimant has failed to act promptly or has unduly delayed in making her application for judicial review. 8.0 Law, Application & Conclusion(s) 8.1 -Setting aside leave In Sanatan Dharma Maha Sabha v Patrick Manning 4, Kangaloo JA cited four principles which ought to be considered in determining whether leave granted should be set aside. The said principles originated from the judgment of Bingham L.J. in R v. Secretary of State for Home Department exp. Chinoy 5 and are reproduced below: 2 Cv No of The Court may- (d) extend or shorten the time for compliance with any rule, practice direction or order or direction of the Court. 4 Civ App No. 174 of [1991] Times Law Report 189 Page 8 of 23

9 (1) an order made against a party in his absence should be capable of being set aside by him if he can demonstrate reasons why the order should not have been made ; (2) there is jurisdiction to set aside not only when there is non-disclosure but also when the Court is satisfied that the leave is one that plainly should not have been granted ; (3) the procedure to set aside leave should be invoked very sparingly ; (4) unless the issue is a very clear one indeed, it would be quite wrong to set aside the leave which has been granted Kangaloo JA. also considered important the question of the ultimate success of the issue, raised by the applicant, on the substantive motion The current application concentrates on the decision of the Second Defendant to reject the claims advanced on the basis that the foreman position was not an established position and had not been properly created by Cabinet. The Claimant however, alleges discrimination since she has been consistently by-passed for acting positions in favour of her juniors resulting in lost service and earnings. As such, she seeks the following remedies: (i) (ii) (iii) (iv) (v) (vi) A declaration that the respective decision(s) is/are unlawful, null and void and of no effect; An order of certiorari to quash the decision(s); Alternatively, an order of mandamus compelling the First Defendant to confirm the Claimant in the position of Foreman Other Services; Damages; Costs All necessary and consequential directions be given In the current application, this Court is guided by the fundamental principle that, although vested with the authority to set aside leave, said power ought only to be exercised very sparingly. Moreover, there are two instances in which the Court will exercise its power to set aside leave: Page 9 of 23

10 (1) In the event of material non-disclosure; and (2) Where it is clear that the grant of leave was plainly unjustified The issue of material non-disclosure does not arise. The Court however, must determine whether the grant of leave was plainly unjustified by virtue of any delay on the part of the Claimant in commencing proceedings. If the Court finds that there has been undue delay in commencing proceedings, it may set aside leave: per Kangaloo, J.A., Maha Sabha v. Patrick Manning Delay Section 11 of the Judicial Review Act 7 states: (1) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (2) The Court may refuse to grant leave to apply for judicial review if it considers that there has been undue delay in making the application and that the grant of any relief would cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. (3) In forming an opinion for the purpose of this section, the Court shall have regard to the time when the applicant became aware of the making of the decision and may have regard to such other matters as it considers relevant. (4) Where the relief sought is an order of certiorari in respect of a judgment order conviction or other decision, the date when the ground for the application first arose shall be taken to be the date of that decision. [Emphasis Added] It is useful at this stage to examine and analyse the chronology of events to determine whether the Claimant has unduly delayed in commencing proceedings. 6 fn 4 above 7 Act No. 60 of 2000 Page 10 of 23

11 DATE EVENT/ACTION August Claimant successfully interviewed for the position of Foreman Other Services. Unknown to her, she was positioned at number 5 in the order of priority She became aware of the order of priority and realized that she had been consistently by-passed in favour of her juniors. She brought same to the attention of her seniors but to no avail. May The Claimant assumed duty for the desired position and stayed in the position for 13 days at which point she was demoted. May The Claimant wrote to the Chief Administrator of the First Defendant who advised that the matter should be settled within the Division. July The Claimant wrote a pre-action protocol letter to the Chief Administrator asking for the matter to be investigated and resolved. November The First Defendant issued a letter to the Claimant informing that the Division would make attempts to correct any form of assumed discrimination. January The First Defendant wrote to the Claimant stating that after giving careful consideration to the matter it had decided to forward the issue to the Second Defendant for a ruling. April 2007 The Claimant s attorney forwarded the complaint to the Second Defendant. September The Second Defendant rejected the Claimant s claim on the basis that the Page 11 of 23

12 foreman position was not an established one and had not been properly created by Cabinet thus, acting appointments do not arise. September The Claimant received correspondence of the Second Defendant s September 5 th decision. September The First Defendant indicated via letter to the Claimant that it had not received a response from the Second Defendant November The First Defendant conveyed, by the act of drawing a line through the words junior, that it had no intention of acceding to the Claimant s request that it take steps to address her claim. December The Claimant filed an application with this Court requesting leave to apply for judicial review I adopt the reasoning of the Honourable Madame Justice Dean-Armorer in the case of National Transportation Co-operative Society Limited v. The Minister of Labour and Small and Micro Enterprise Development 8 : it was eminently reasonable for the Applicant to have sought confirmation and clarification before initiating legal action In other words, it is quite reasonable for the Claimant to exhaust all internal channels within the organization before commencing legal proceedings otherwise an applicant may be met with an argument of prematurity. This is especially so in this case because of the fact that the eagerly awaited responses from the pertinent parties were not forthcoming. 8 fn 2 above para 17 Page 12 of 23

13 8.2.4 If approached superficially, one may arrive at the misguided notion that the last step taken by the Claimant was in April 2007 creating a lull of some eight months between that and the application of December 17, The observations of The Honourable Mr. Justice Bereaux in the case of Fishermen and Friends of the Sea v Environmental Management Authority 9 are particularly apt where he stated that: The question is whether the applicant ought to have proceeded with more expedition in bringing the application to court. The imposition of the three month limit although itself not a low water mark for promptness is a recognition by Parliament of the need to proceed with dispatch when challenging the decisions of public bodies He continued: knowledge of the decision however is a critical factor in the initiation of action In this case, the Claimant became aware of the decision of the Second Defendant on September 20, This is to be treated as the relevant decision for all intents and purposes. The action taken by the First Defendant on November 26, 2007 is simply too ambiguous to be considered reliable. Furthermore, although the Claimant is employed by the First Defendant which is responsible for the formulation and implementation of policy regarding infrastructure and public utilities, it is really the Second Defendant who deals with issues regarding personnel such as pay levels and the like. Therefore, any issues of pay levels, terms and conditions of employees, job structures and such are the domain of the Second Defendant and not the First. Moreover the Second Defendant has joined issue in these proceedings contending that the positions of Foreman other Services are not established positions on the Permanent Establishment of the Division as they were not properly created by Cabinet and as such any claims to acting appointments to this position do not arise. Thus, the decision of the Second Defendant is the one which is binding on the 9 HCA No of 2002 at p.13 Page 13 of 23

14 employee/claimant regardless of whether the First Defendant merely included the Second Defendant in an advisory capacity Since the relevant date or the date when the grounds for the application first arose is September 20, 2007 then the statutory period within which the Claimant is expected to make an application is December 20, The Claimant made her application 3 days shy of the three-month limit provided by statute and has therefore complied with that limb of the two-fold stipulation in section 11(1) of the JRA supra. As to whether this satisfies the requirement that the application is made promptly, this Court again reiterates that it is reasonable and acceptable for the Claimant to have awaited some decisiveness on the issue raised with the Defendants. As such, the Claimant has not unduly delayed in initiating the requisite legal proceedings In the event that this is a flawed analysis of the chronology of events, certainly there is good reason to extend the time and said extension would promote good administration In the Maha Sabha case 10 it was argued that good reason was not limited to, although it may include, an explanation for the delay which in the current matter would include the pursuit of internal channels. However, good reason could also include the public importance of the matter notwithstanding the unexplained delay I accept the Claimant s submissions that judicial review would promote good administration because: Decisions about the priority list would be made in a more transparent manner; All candidates would be advised as to their grades/ marks and standing on the list within a reasonable time of the interviews; Appointments would be made in accordance with a clear set of guidelines which will be known to candidates before hand; 10 fn 4 above Page 14 of 23

15 Offers of appointments and refusals of such appointments would be done in writing; Complaints about appointments to the position will be reduced or will be more expeditiously resolved; A clear position would emerge on the issue of the post not being a permanent position on the establishment of the First Defendant and implications of that; Guidance would be provided as to effect of no pay study leave on the right to be appointed to the post. 8.3 Failure to comply with time stipulated for making a claim for judicial review after having been granted leave Rule 2.2 (4) CPR provides: In these Rules the word must wherever this word occurs shall be deemed to have been substituted by the word shall Rule 56.4 CPR provides: (1) An application for leave to make a claim for judicial review must be considered by a judge of the High Court. (2) The judge may give leave without hearing the applicant. (3) However, if (a) the judge is minded to refuse the application; (b) the application includes a claim for immediate interim relief; or (c) it appears that a hearing is desirable in the interests of justice, he must direct that a hearing in open court be fixed. (4) The judge may direct that notice of the hearing be given to the respondent or the Attorney General. (5) Where the application relates to any judgment, order, conviction or other proceedings which are subject to appeal, the judge may adjourn consideration of the application to a date after the appeal has been determined. (6) The judge may allow the applications to be amended. (7) The judge may grant leave on such conditions or terms as he considers just. (8) Where the application is for an order of prohibition or certiorari the judge must direct whether or not the grant of leave operates as a stay of the proceedings. (9) The judge may grant such interim relief as appears just. (10) On granting leave the judge must either direct when the case management conference shall take place or, in cases of urgency, or where he considers a case management conference is not necessary, fix the date of hearing of the Page 15 of 23

16 application for a judicial review and give any appropriate consequential directions. (11) Leave must be conditional on the applicant making a claim for judicial review within 14 days In this case the Applicant received an order granting leave to apply for judicial review on December 24, However the claim for judicial review was only made on February 15, This clearly exceeded what is stipulated in the foregoing Rule by some 5 weeks. The question therefore arises as to whether this Court has the power to extend the time It must be remembered that in a public law context the reasonable requirements of public administration have a significance which is absent in ordinary inter partes litigation : per Sir Thomas Bingham MR in Regalbourne Ltd v East Lindsey District Council 11. As was stated by Henry LJ in R v Institute of Chartered Accountants in England and Wales, ex p Andreou 12 : Public law deals with the identification and redress of public wrongs generally in disputes between the citizen and the State or its institutions. It provides under Order 53 a simplified and expeditious procedure which is essential to the Crown Office List to fulfill its purpose, while recognising both the general importance of the issues at stake and the large numbers often potentially affected by them, and the necessity for an early resolution of them. If normal private law delays and private law s relaxed attitude to rules and time limits creep into the Crown Office List, then the delays in that list will build to the point that it can no longer properly perform the important public duty entrusted to it. Public law litigation cannot be conducted at the leisurely pace often accepted in private law disputes. As has been pointed out in relation to the Woolf interim report on Access to Justice, what is wrong in private law is often not so much the time limits for individual steps laid down, but the fact that they are not routinely enforced ALR 102, [1993] COD [1996] COD 489 at Page 16 of 23

17 8.3.5 However once an applicant has crossed the threshold in obtaining leave (an arguable case), the courts generally have discouraged applications to set aside leave and have indicated that the jurisdiction to set aside should only be exercised sparingly and in a very plain case (R v Secretary of State for the Home Department ex p Chinoy 13 ) Further pursuant to CPR 1.2 the Court must seek to give effect to the overriding objective when it (a) exercises any discretion given to it by the Rules, or (b) interprets the meaning of any rule. Manifestly the fundamental purpose of the CPR is to deal with cases justly. CPR 56.4 incorporates doing what is just. Thus the court may grant leave on such conditions or terms as it considers just: 56.4 (7). Further the court may grant such interim relief as appears just: 56.4 (9). Pursuant to 56.4 (10) the court may, among other matters, give any appropriate consequential directions. One of those directions that the court must give is that leave must be conditional on the applicant making a claim for judicial review within 14 days: 56.4 (11) I therefore consider that having regard to the overriding objective, justice, fairness and proportionality do not warrant the interpretation contended for by the Defendants, but that I must give a broader purposive effect to the wording of Part 56.4 (11). To hold otherwise would mean that a matter of urgent public importance would be incapable of resuscitation on the basis of a one-day delay in making the application for judicial review. Any attempt to refile a further action could result in arguments being mounted, in an appropriate case, as to delay on the application for leave. Moreover it would preclude an applicant from making a timeous application before the expiry of the 14-day period for an extension of time pursuant to CPR 26.1 (1) (e). ( The Court may extend or shorten the time for compliance with any rule, practice direction or order or direction of the Court. ) Death of an attorney in the interregnum may have dire consequences for such a litigant. In those circumstances I respectfully disagree with the decision in Janet Tobias Douglas v THA and CPO 14 which held that CPR 56.4 (11) was mandatory and akin to a condition precedent. 13 fn 11 above 14 Cv Page 17 of 23

18 8.3.8 In my view the Court may, pursuant to CPR 26.1, extend the time for compliance with CPR 56.4 (11). However given the fact that judicial review has a significance which is absent in ordinary inter partes litigation, CPR 56.4 (11) contemplates the claim for judicial review being made within a relatively short period. Thus an applicant who is requesting such an extension must provide the court with compelling reasons before it can consider exercising its discretion Having regard to my interpretation of CPR 56.4 (11), the Applicant has failed to provide the Court with any or any reasonable explanation for the delay in making the application for judicial review some five (5) weeks beyond the stipulated deadline. The Court is therefore devoid of any material upon which it can exercise its discretion. In those circumstances I propose to set aside the leave granted to the Applicant. 9.0 The Jurisdiction of the High Court in relation to trade disputes 9.1 -Submissions The Claimant asserts that the application of a simple construction of section 2 of the Industrial Relations Act (IRA) reveals that this is not a trade dispute. Moreover, a trade dispute is one that arises between the employer and its workers (as a group) or between the employer and the trade union representing them. On the contrary, the issue is centered on the Claimant s appointment to a position. This involves the interpretation or application of Clause 19.4 of the Joint Negotiating Collective Agreement and whether it applies to the Claimant s right to be placed in the function of Foreman Other Services On the other hand, the Defendants contend that the appointment to a position would fall within the ambit of a dispute connected with either the employment or terms and conditions of the employment since the Claimant is challenging her non-employment Page 18 of 23

19 as a foreman. Further, that there is no ambiguity in the Collective Agreement and therefore, the matter does not involve the interpretation or application of the provisions therein. The Defendant contends that the Claimant is in fact seeking to enforce a term under the Agreement and is thereby seeking to rely on section 47 (1) of the Industrial Relations Act. According to the Defendants, the cumulative effect of the foregoing is that the Claimant has failed to bring the matter before the proper tribunal Issue(s) The bone of contention is whether the matter has been brought before the proper tribunal. In other words, whether the High Court has jurisdiction to interpret and/or enforce the terms of the Collective Agreement ( ), in light of the relevant statutory provisions in the Industrial Relations Act. The determination of this issue is largely dependent on whether or not the matter herein is in fact a trade dispute Application of the Relevant Law & Authorities Trade Dispute Defined Section 2 of the IRA 15 is reproduced hereunder: trade dispute or dispute, subject to subsection (2), means any dispute between an employer and workers of that employer or a trade union on behalf of such workers, connected with the dismissal, employment, non-employment, suspension from employment, refusal to employ, re-employment or reinstatement of any such workers, including a dispute connected with the terms and conditions of the employment or labour of any such workers, and the expression also includes a dispute between workers and workers or trade unions on their behalf as to the representation of a worker (not being a question or difference as to certification of recognition under Part 3).[Emphasis added]. 15 Chapter 88: 01 Page 19 of 23

20 9.3.3 Any term of the contract of employment may be the basis of a trade dispute. Term of employment includes the issue of promotions The instant case, by the Claimant s own submission, involves the issue of appointment (or non appointment) to a position, namely the position of Foreman Other Services. Prima facie, based on the circumstances of this case, this is in essence a promotion. As such, this falls within the parameters of what the authorities describe as a trade dispute which is the province of the Industrial Court. In fact, section 47 (1) of the IRA is instructive on this point. It is worded as follows: The terms and conditions of a collective agreement registered under section 46 (referred to in this Part as a registered agreement ) shall be binding on the parties thereto and shall be directly enforceable, but only in Court Davis J.A. in the case of AG v Chaman Algoo 17 commented on the effect of the section. He stated: Section 47 (1) of the Act in my view does at least two things. It, first of all, prescribes that the terms and conditions of registered agreements are to be binding on the parties thereto, and secondly, it prescribes that the terms and conditions of such agreements are enforceable, but only in the Industrial Court. It is clear, therefore, that as between the parties to a registered agreement the only forum in which they can enforce its terms and conditions is in the Industrial Court. Note also, that when dealing with the question of enforceability in the Industrial Court to the parties of such agreement, but says simply that those terms and conditions shall be directly enforceable, but only in the Court. [Emphasis Added] Therefore, the Industrial Court has sole jurisdiction as regards enforcement of the terms and conditions of collective agreements. 16 Roop L. Chaudhary, Studies in Caribbean Labour Relations Law, p Civ Appeal No. 47 of 1984 at pp 6-7 Page 20 of 23

21 9.3.7 However, the Claimant asserts that it is a matter of interpretation and applicability and therefore is not captured within the scope of a trade dispute. In this regard, the Claimant relies on section 2 subsection 2 (a) (ii) of the IRA which states: any question or difference as to the interpretation or application of ii) the provisions of a registered agreement (within the meaning of Part 4).shall be deemed not to constitute a trade dispute The aforementioned section is clear but the question is, has it been properly applied by the Claimant? What is the Claimant really asking this Court to do? The Claimant s primary concern, by her own admission, is that she had a right to have been put in the position of Foreman Other Services. The Claimant asserts that this depends on whether the Court finds Clause 19.4 of the Collective Agreement to be applicable to her circumstances. However, resolution of the issue of whether the Claimant was in fact entitled to promotion, as she so claims, requires a consideration and determination of what are the actual terms and conditions of the agreement. This, however, is not something with which the High Court can deal. The case of Chaman Algoo 18 is also instructive on this point: Indeed it seems to me that the Industrial Court is given the power under the Act to determine what are the terms and conditions of a registered agreement applicable to a worker, and hence has the power to write a contract of employment for the workers in a bargaining unit. A power the High Court of Justice does not have Additionally, Clause of the Collective Agreement is one of five sub-clauses captured under the rubric promotion policy. The issue of promotion is covered by the umbrella terms of employment which is in fact an appropriate subject matter to be dealt with in a trade dispute. As such, this resolves the issue. Consequently and conclusively, on this issue, the matter is outside the jurisdiction of this Court. 18 fn 17 above at p A worker who has been acting in a vacant position for a period of at least one year shall be confirmed in the position. Page 21 of 23

22 The Second Defendant encapsulated further contentions in correspondence to the Claimant dated September 5, 2007 and filed December 17, Therein they asserted that: the positions of Foreman Other Services for which your clients claimed they were overlooked are not established positions on the Permanent Establishment of the Division The Claimant referenced the foregoing in further submissions filed on June 3, 2009 in which she stated that the Second Defendant was postulating that Clause 19.4 of the Collective Agreement was not applicable to her. This, she argued, placed the issue squarely within the ambit of subsection 2 (a) (ii) supra. Essentially, the Claimant s position is that this falls outside the parameters of what is statutorily considered a trade dispute This Court is minded to agree with the Claimant on this limited issue. Before determining whether or not the Claimant was overlooked to act in the position of Foreman Other Services, the anterior question of whether the positions of Foreman Other Services were properly created by Cabinet must be resolved. Manifestly this would fall outside the parameters of what is statutorily considered a trade dispute. As such, arguments relative to this specific issue can be ventilated in the High Court because of the nature of the role to be played by the Judicial Officer in such proceedings. On this limited issue and by reason of the foregoing a High Court Judge has the requisite jurisdiction Disposition Having regard to the failure of the Claimant to provide the Court with any or any reasonable explanation for the delay in making the application for judicial review some five weeks beyond the stipulated deadline, I hereby set aside the leave granted to the Claimant. Page 22 of 23

23 The Claimant has succeeded on the issue of the High Court having jurisdiction. However the Defendants have succeeded on the application to set aside leave. In those circumstances an appropriate order for costs is that the Claimant is to pay the Defendants 60% of the costs of the application. DATED this 17 th day of May, PRAKASH MOOSAI JUDGE Page 23 of 23