THE REPULIC OF TINIDAD AND TOBAGO Claim No. CV2013-04254 IN THE HIGH COURT OF JUSTICE In the matter of the Judicial Review Act Chapter 7:08 And In the matter of an application for judicial review of the decision dated 29 April 2013 by the Minister of Labour, Small and Micro Enterprise Development to grant an extension of time to the Steel Workers Union of Trinidad and Tobago to report certain trade disputes Between ARCELORMITAL POINT LISAS LIMITED And THE MINISTER OF LABOUR, SMALL AND MICRO ENTERPRISE DEVELOPMENT Claimant Defendant Dated: 27 January, 2017 Before the Honourable Mr. Justice James C. Aboud Representation: Ms. Vanessa Gopaul instructed by Ms. Tamilee Budhu for the claimant Ms. Rachel Thurab and Mr. Lee Merry instructed by Ms. Diane Katwaroo for the defendant JUDGMENT 1. The fixed date claim in these judicial review proceedings seeks declarations that the defendant s decision of 29 April, 2013 to extend the time by which Steel Workers Union of Trinidad and Tobago could report a trade dispute is ultra vires, unreasonable, erroneous in law and contrary to the rules of natural justice. The claimant seeks an order of certiorari to quash this decision. Page 1 of 13
Background 2. The claimant is a limited liability company with a unionised workforce, represented by its recognized majority union, Steel Workers Union of Trinidad and Tobago ( the union ). The defendant is the Minister of Labour, Small and Micro Enterprise Development ( the minister ). In the course of his dealings with trade unions and employers the minister acts through various personnel within the Ministry of Labour, Small and Micro Enterprise Development ( the ministry ), for whose actions he is responsible. 3. Directions were given for the union to be served with these proceedings and several adjournments were taken to allow them to participate, but they never appeared. 4. Briefly stated, section 51(3) of the Industrial Relations Act Chap 88:01 provides a six-month deadline for a union to report a trade dispute, but gives the minister a discretion to extend the time. This is a case in which the minister s decision to extend time is under review. 5. On 22 May 2009 the union reported a trade dispute to the minister in respect of the termination of services of some forty-nine contract employees ( the 2009 trade dispute report ). The terminations allegedly took place during the period October 2008 to January 2009. On 17 June 2009 the ministry acknowledged receipt of the 2009 report and directed the union to furnish the minister with better particulars, specifically, the dates when the issue giving rise to the dispute first occurred, as well as a list of the names of the terminated workers. 6. On 15 September 2010, some 15 months later, the union responded to the minster s request for further particulars. It purported to provide the requested particulars and also requested an extension of time to report the trade dispute ( first application for extension of time ). The trade dispute was expanded to include the non-payment of severance benefits, effective during the months of October, November and December 2008 and January 2009. In addition, the names of 22 additional workers were provided. These names were not included in the 2009 report. Page 2 of 13
7. The union s first application for an extension of time lacked the necessary information for such an application. That was the opinion of personnel within the ministry. This failure resulted in the application not being considered as a proper request for an extension of time. The ministry, by its letter of 31 March 2011, wrote the union seeking the specific dates of each termination, as well as the reasons for its failure to report the matter within the statutory six-month period. On 12 April 2011 the union responded to the ministry, providing the requested information. The letter revealed that there were different dates giving rise to the dispute for certain groups of employees. Upon agreement, the union separated the matter into discrete requests for extensions of time, since there were about eight dates when the issue giving rise to each dispute arose. 8. Consequently, by ten letters all dated 10 June 2011 (some two years after the 2009 trade dispute report) the union wrote to the ministry rescinding its first application for an extension of time (of nine months earlier), and requested an extension of time to report the trade dispute ( the 2011 extension of time applications ). Obviously, the two applications for extensions of time could not co-exist. The 2011 extension of time applications superseded and entirely replaced the earlier one. The union s 2011 extension of time applications cited the following reasons for its failure to report the trade dispute within the statutory period: a) The union was approached by approximately 200 contract workers making claims (the subject of the trade dispute) and it took a long time to investigate their claims; b) During the period of the terminations, the claimant retrenched 119 of its permanent labour force for unrelated reasons and it consumed a lot of the union s time; c) During this period the union s labour relations officer ( the LRO ) unexpectedly resigned and there was no proper handing over of the existing matters from that period to the new LRO (one Mr. Teeluck); d) It took time for the new LRO to settle into his position; and Page 3 of 13
e) The union wrote to the company on two occasions, that is, 12 January, 2009 and 16 February, 2009 requesting a meeting to discuss the matter, but with no success. 9. The minster, on 12 July 2011, forwarded the union s 2011 extension of time applications to the claimant, requesting its comments. On 11 August 2011 another letter was dispatched to the claimant, reminding it to submit their comments. A deadline of 2 September 2011 was given. 10. On 20 September, 2011 the claimant submitted its comments and objections to the union s 2011 extension of time applications. The following is a summary of the objections made by the claimant: 1) The trade disputes were statute barred in light of the inordinate and inexplicable delay by the union, particularly in a unionised environment. 2) The union s letters contained a major untruth, namely, that the alleged unexpected resignation of the union s LRO and his failure to hand over his files to new LRO was the cause of the delay. The claimant contended that Mr. Teeluck became the acting LRO at the union in April 2010 and was appointed to the position on 1 June 2010. Consequently, Mr. Teeluck only became responsible for the subject trade dispute after sixteen months had elapsed. The claimant submitted documents to show that the then LRO, Mr. Lancelot Smart (Mr. Teeluck s immediate predecessor) was actively involved in the union as the LRO during the period when the dispute arose and long after the expiry of the statutory period. 3) From the time of his resignation as LRO and up until the date of the letter Mr. Smart was an executive member of the union, and his name appeared on its letterhead. 4) Contrary to the collective agreement, the union did not write on behalf of any named workers nor identify the dispute. Page 4 of 13
5) The union failed to follow the grievance procedure set out in the collective agreement and ignored its dispute resolution mechanisms. 11. The ministry forwarded the claimant s objections to the union on 9 January 2012 for comment. On 23 January 2012 the union replied to the ministry with its response to the objections. The ministry says that it forwarded the union response to the claimant under cover of its letter of 4 March 2012. There is a factual dispute as to whether this letter was received by the claimant. The claimant disputes ever receiving it. The factual issue will be dealt with later in this judgment. The contents of the union response, as well as the claimant s affidavit evidence in rebuttal to it, are also set out below. 12. On 2 April 2012 the ministry s Conciliation and Labour Relations Officer, Ms Arian Charles, submitted a note recommending that the minister grant the 2011 extension of time applications. In making her recommendations Ms Charles noted the following: a) The minister had a discretionary power to extend time under section 51 (3) of the Act; b) The union had attempted to report a similar trade dispute for a number of workers, including the aggrieved in these matters, within the statutory time frame; c) Notwithstanding the inordinate delay the union had attempted to convene bilateral meetings with the claimant to discuss the termination of some of workers two months after the first of those terminations occurred; d) The spirit and intent of the Act is to foster and promote good industrial relations practice. The union had provided sufficient reasons to justify the delay and, despite the claimant s objections, the delay was not due solely to the union. 13. Ms Bridget Ignatius, a Senior Conciliation and Labour Relations Officer, agreed with Ms Charles recommendations. She said so in an undated memorandum. Ms. Ignatius noted that Page 5 of 13
two attempts were made by the union to engage the claimant within six months of the termination of at least two of the workers. She also noted that the claimant had not advanced any reason to suggest that it would be inconvenienced by the grant of an extension of time. 14. The minister, acting through Ms Ignatius, granted the extension of time by letter of 29 April 2013. 15. There are two issues in this case: 1) Whether the minster breached the rules of natural justice by failing to allow the claimant an opportunity to be heard; 2) Whether the decision is unreasonable by reason of the minister failing to take account of material considerations. 16. Judicial review is a supervisory jurisdiction that concerns itself with the legality of the acts and decisions of persons or public bodies exercising a public function. The procedure for such claims is contained in Part 56.3 CPR and the Judicial Review Act Chap. 7:08. The function of the court is not to review the merits of a decision. Rather, it is to review the lawfulness of the exercise of a public function: Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6. 17. Section 51(3) of the Act gives the minister a discretionary power. It reads: 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 18. The discretion must be exercised in the furtherance of the policy and objects of the Act. The objects of the Industrial Relations Act are set out in the long title: An Act to repeal and replace the Industrial Stabilisation Act 1965, and to make better provision for the stabilisation, improvement and promotion of industrial relations. Page 6 of 13
The Act is divided into six parts, each dealing with either the fostering of good industrial relations practices or providing for the resolution of disputes. Generally, the time limits set out in the Act, be they with regard to reporting a trade dispute or hearing or determining a dispute, suggest expediency. 19. Natural justice is founded on two pillars, the right to a fair hearing (audi alteram partem) and freedom from bias in an adjudicator (nemo judex in causa sua). The grundnorm of natural justice is of course fairness. In Lloyd v McMahon [1987] AC 625, Lord Bridge of Harwich said this: My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demands when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decisionmaking body, the kind of decision it has to make, and the statutory or other framework in which it operates. In particular, it is well established that when statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional safeguards as will ensure the attainment of fairness. 20. It is abusive to fetter one s discretion. This is so even when the discretion is granted in very wide terms. The first and often most indestructible fetter is the stated object of the enactment. 21. In Padfield v Minister of Agriculture, Fisheries and Food [1986] AC 997 Lord Reid noted: Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the act as a whole and construction is always a matter of law for the court But if a minister, by Page 7 of 13
reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. 22. Even when the objects of an act are honoured a discretion may still be improperly exercised if the decision-maker has taken irrational or irrelevant matters into consideration. A decision taken with those considerations in mind can never be in compliance with an enactment. In Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223 Lord Greene described the meaning of the word unreasonable : It is true that a discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he may truly be said, and often is said, to be acting unreasonably. Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. 23. The extension of time application in this matter was made on 10 June 2011, a delay which was in excess of two years for most of the workers, and one year and eleven months in respect of a few. The reasons given by the union for its inordinate delay were primarily attributed to the union s inability to address the issues in a timely manner. This was so because of a change in personnel and also the large number of cases that required to be investigated. In her affidavit on behalf of the defendant Ms Ignatius said that, among other things, the reason for the delay formed the basis of the decision to grant the extension of time: Page 8 of 13
The objections by the claimant concerned mainly what it perceived to be misrepresentation and poor management by the union. I did not consider this a strong objection as my concern is not with what is going on at the union, but rather the manner in which the union pursued the matter. 24. It is only reasonable to expect that, in considering the union s explanations for the delay Ms. Ignatius would have had to address her mind to the internal manpower arrangements at the union. It is a material consideration. Her disapproval of the claimant s objections because it raised this issue suggests that she closed her mind to that line of enquiry. 25. The decision to grant the extension was made on another basis. Ms. Ignatius noted that the claimant did not say that it was being inconvenienced or in any way disadvantaged by the granting of the extension. In my view, the claimant s objections were sufficient to demonstrate their opposition of granting such an extension. It does not seem reasonable to believe that inconvenience is not created because of an omission to explicitly say that it does. In some cases inconvenience need not be specifically asserted, especially here, with such an inordinate delay. Inconvenience is a relevant matter. 26. At the substantive hearing the defendant contended that the ministry followed the usual procedure and there was no need for further consultation from the union or the claimant. This is what Ms Ignatius said in her affidavit: 10. Applications for extensions of time are guided by the ministry s internal procedures which stipulate the process as to how such requests are to be dealt with. These procedures can be summarised as follows: a) A request is received from the reporting party (Union or the Employer) pursuant to section 51 (3) of the IRA. b) The ministry then determines if the letter of request contains the names and principal place(s) of business of the parties to the dispute, the date on which the issue giving rise to the dispute first arose and the reason(s) for the delay in reporting the matter. Page 9 of 13
c) If all the information is properly included, the ministry writes to the other party (Union or Employer) and forwards a copy of the letter of request. The ministry further requests such affected party to provide comments and to say whether such party has any objection to the request. d) If there are objections, the ministry informs the reporting party by letter and attaches a copy of the letter of objection. The ministry then requests a response to same. e) When the reporting party responds to the other party s objection and if it proffers new or significant information, the same is forwarded to the objecting party to be given an opportunity to respond and comment on it. f) If no new or significant information is received, the documents are then examined and processed by the relevant officer of the ministry. g) A note is then prepared by the officer in which a recommendation is made regarding the request for the extension of time. The officer then forwards this note with the recommendation to a Senior Conciliation and Labour Relations Officer. The Senior Conciliation and Labour Relations Officer then makes a determination as to whether the request for extension would be granted after considering the recommendation. 27. It is not disputed that the claimant took objection to the union s 2011 application for an extension of time. The defendant however contended that the union responded to those objections, which were later forwarded to the claimant for a response. Ms. Ignatius said Page 10 of 13
that the union, by its letter of 23 January 2012, responded to all of the claimant s objections. The union had attached copies of its letters of 12 January and 16 February 2009 to its response letter. These were the letters to the claimant in which the union initially requested a meeting on behalf on unnamed contract workers. She also said that the ministry forwarded the union s response to the claimant by letter of 4 March 2012, requesting its input. She said that the claimant never responded. Afterwards, the decision was made. 28. The claimant has firmly denied receipt of the ministry s 4 March 2012 letter. It says that it therefore never had an opportunity to reply to the union s response. The defendant has not produced any reliable evidence to satisfy the court that the letter was delivered. If the letter was posted there should be a record in a ledger that it was posted. If it was hand delivered there should be a record in a delivery book. In either case some person at the ministry who was charged with the responsibility of causing the delivery of the letter, and who could have testified as to its delivery, could have gone on oath. The court would have been open to permitting the belated reception of such affidavit evidence in rebuttal and can only assume that the record is non-existent. The delivery of these letters, like the service of the affidavits in this case, is essential to the process of resolving the dispute fairly. This is not a matter that can be blamed on the claimant s office management or record keeping, as the defendant sought to do. The ministry is performing an important function, not far removed from something quasi-judicial. It is the conduit for the exchanges between the parties. That is an administrative function. But these written exchanges supply the evidential material that the ministry s officers will consider when deciding whether or not to extend the time. An authority charged with the exercise of a discretion will want to be in a position to prove whether by formal or informal means that it complied with the maxim audi alteram partem. The invitation to participate and the refusal or neglect to participate is a matter of fact, not law. The duty to comply with the maxim includes a duty, I think, to prove compliance with it, especially in cases like this, when the process in under attack. I imagine that in order to protect itself an authority depending on the nature of its work will always want to be in a position to prove service. Page 11 of 13
29. In the absence of proof of delivery of the union s letter, and in light of the claimant s forceful denial of receipt, on a balance of probabilities I must hold that the union s response was not sent to the claimant. The failure to deliver the letter ruins the lawfulness of the decision in procedural and substantive ways. It is plainly unfair. The claimant was unable to know the case brought against it and deprived of an opportunity to respond. 30. The claimant got the opportunity to respond to the union statements in these proceedings. This is a summary of what the union said in response to the claimant s objections: a) The union suggested that it had been pursuing the matter since 2009 and attached its two initial letters to the claimant of 12 January and 16 February 2009. The first requested a meeting to discuss severance benefits for all contracted employees who have been working in permanent positions. The second was a follow-up reminder. b) The union pointed out that it had reported the dispute to the minister on 22 May 2009. c) The union noted that it had many challenges in meeting the minister s request to provide the relevant information. It further argued that the company s delay in responding to the minster s request was the reason for the need for an extension of time in January 2012. 31. The statements made by the union were repeated in Ms Charles memo. They were regarded as proper material upon which a decision could be taken. Before me the claimant discredited these statements. The initial letters lacked specificity and referred in general terms to all contracted employees who were working in permanent positions. For a company like the claimant, with a large work force many of them hired by subcontractors the lack of particulars about the parties to the dispute is noticeable. Ms Ignatius herself recognized this. Further, the union s mention of the 2009 trade dispute report should have been ignored. There was no report of a trade dispute in 2009. Ms Ignatius has admitted this in her affidavit. The document issued by the union in 2009 lacked all the necessary particulars to amount to a report and was rejected by the ministry Page 12 of 13
and formally withdrawn by the union. The names that finally made their way onto the final report of the trade dispute were not the same names reported in 2009. It seems to me that the report evolved over time, very slowly. Finally, the union response cast the blame for the delay on its manpower difficulties in obtaining better particulars of the dispute from the employees, and it also accused the company of delay. I do not accept that adequate evidence of a manpower deficiency within the union was given to the ministry. Had the ministry properly considered the claimant s objections it would have seen that there was continuity within its Labour Relations Office. There is nothing exceptional about this trade dispute that would cause a delay, in some of the cases, of over two years to report it. Moreover, a proper arithmetical assessment of the considerable delays in getting this dispute off the ground cannot properly be blamed solely on the claimant. The ministry accepted the union s arithmetic without consulting the claimant. 32. The failure to consider these matters amounts to Wednesbury unreasonableness. The decision-maker failed to take account of material considerations and therefore fell into error. The material considerations were contained in the claimant s letter of objections. The decision-maker also failed to allow the claimant an opportunity to respond, and was so deprived of material that would have had an impact on the decision. 33. The minster s decision to grant the extension of time was exercised in contravention of the rules of natural justice and was procedurally unfair and unreasonable. 34. I therefore grant the declarations set out in the Fixed Date Claim to that effect and declare that the decision is void. I will also grant the writ of certiorari to quash the decision. 35. I will now hear Counsel on the question of costs. James Christopher Aboud Judge Page 13 of 13