An Application by John West Managing Director of TMM (St. Vincent) Ltd T/A TMM Yacht Charters for Leave for Judicial Review v an Application by John West the Managing Director of TMM (St. Vincent) Ltd T/A TMM Yacht Charters for Judicial Review of a Severance Payment Order made by the Hearing Officer of the Labour Commission on 4th July 2013 [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Combie Martyr, J. (Ag) |
| Judgment Date | 11 March 2014 |
| Judgment citation (vLex) | [2014] ECSC J0311-3 |
| Court | High Court (Saint Vincent) |
| Docket Number | CLAIM NO. SVGHCV 2014/0025 |
| Date | 11 March 2014 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SVGHCV 2014/0025
Ms. Heidi Badenock for the Applicant
Ms. Michelle Davidson for the Respondent
The Applicant is seeking leave to file a claim for judicial review for an Order of Certiorari to remove it into this Honourable Court and to quash the order or decision for severance payment made on 4 th July 2013 in favour of Ausborne Frederick, an employee of the Company TMM (ST. VINCENT) LTD T/A TMM YACHT CHARTERS, by the Hearing Officer appointed under the Protection of Employment Act Cap 212 Revised Edition of the Laws of Saint Vincent and the Grenadines, (Decision/Order).
The Decision was made pursuant to Sections 35 et seq of the Protection of Employment Act Cap 212 Revised Edition of the Laws of Saint Vincent and the Grenadines (the Act).
The case for the Applicant made pursuant to CPR Part 56.3, was set out in a Notice of Application filed on the 6 th February 2014 in which the details of relief sought were as follows:
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i) Leave to apply for judicial review of the decision dated 4 th July 2013 of the Hearing Officer in the Department of Labour, "that the Managing Director of TMM Yacht Charter must pay the sum of $16, 153.84 to Mr. Ausborne Frederick via the Labour Commissioner on or before Friday 26 th July 2013" and an Order for Certiorari to remove it into this Honourable Court and to quash the same.
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ii) An interim order to stay the Decision until the application for judicial review has been heard and determined on its merits.
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iii) An order for the rehearing of the matter.
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iv) Costs in the cause.
The Grounds of the Application were Procedural Impropriety, Illegality and Irrationality as set out in the Notice of Application filed and were presented in the oral submissions of Counsel on behalf of the Applicant.
The Notice was supported by the Affidavit evidence of John West Managing Director of the Company filed on the 6 th February 2014 and exhibits thereto which set out the facts leading to the decision of the Hearing Officer and the Applicant's inability to file his appeal in time having been severely disadvantaged by the delayed notice and subsequent late receipt of the Order.
The response of the Respondent in opposition to a grant of leave to the Applicant, was presented in the Affidavit evidence of (1) Fitzroy Jones Labour Commissioner (2) Marissa Young Senior Clerk Labour Department, (3) Ausborne Frederick (the Employee) (4) Cecil John Hearing Officer and exhibits thereto filed on the 18 th February 2014.
The facts as presented by the Respondent can be summarized as follows:
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(i) A complaint was lodged with the Labour Department by the Employee against the Company regarding his unfair dismissal and non payment of severance;
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(ii) The Employee was suspended without pay from 25 th November 2012;
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(iii) The Notice of Hearing was received by the Company two days before the hearing despite being asked by Ms. Young from the Labour Department to collect same sometime before then;
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(iv) A request by the Applicant for an adjournment of the hearing due to the unavailability of his Legal Representative was denied which was considered to be a 'slender reason' and the hearing proceeded in the absence of the Applicant and his Legal Representative;
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(v) The practice of the Labour Department is for parties to a dispute to be informed of correspondence (notices, letters, decisions, orders) to be collected by the parties and hand delivery of correspondence is only done in the most extraordinary circumstances;
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(vi) This being one such case, the Decision was hand delivered to the Applicant one week before the expiration of time to appeal which appeal was subsequently lodged out of time;
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(vii) The allegations of delay made by the Applicant are due to the fault of the Applicant and not due to any actions on the part of the Hearing Officer, Labour Commissioner or the Labour Department, they having taken all steps necessary to ensure early receipt by the Applicant of the Notice and Decision;
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(viii) The Company having not complied with the Order of the Hearing Officer and the time for appeal had expired, on reliance of the finality of the Decision, in October 2013, claim 231/2013 was filed on behalf of the Employee seeking to register and enforce the Order;
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(ix) Applicant had filed this Application for leave more than 6 months after the Decision, which delay has resulted in the filing of enforcement proceedings.
Counsel for the Applicant submitted that the Applicant was relying on the Notice, Affidavit and exhibits filed on the 6 th February 2014. Counsel sought to expound on the grounds of Procedural Irregularity, Illegality and Irrationality as set out therein.
With respect to Procedural Impropriety, Counsel asserted the following breaches:
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(i) The Respondent failed to observe the basic rules of natural justice and or fairness and/or failed to act with procedural fairness in not giving the Applicant sufficient notice, giving only two days before the hearing. As such the Applicant was unable to gather the necessary documentation and other evidence and obtain legal representation and/or advice to prepare properly and adequately for the hearing so as to fairly put forward his case.
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(ii) The Respondent in refusing to grant an adjournment to the Applicant due to the unavailability of the Applicant's Legal Representative, deprived the Applicant of a right to a fair hearing and to put forward his case, as the hearing proceeded in the absence of the Applicant and his representative.
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(iii) The Respondent failed to serve/deliver/give the Decision "forthwith" as provided in Section 38 (3) of the Act and the Decision hand delivered 15 days after it was made impeded the Applicant from complying with the statutory time to appeal as required under the Act.
With respect to Illegality, Counsel asserted the following:
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(i) The Applicant is an employee of the Company and the Order was made against the Managing Director of the Company who is an employee of the Company and not the Company, who is the employer of the Employee;
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(ii) The Respondent acted ultra vires and/or in excess of his jurisdiction and/or the Order made was in excess of his powers in that the Order was made against the Managing Director of TMM Yacht Charters and not the employer Company TMM (St. Vincent) Ltd T/A TMM Yacht Charters (the Company).
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(iii) The Act relates to employers and complaints by employees against employers;
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(iv) The Decision should have stated the words "The Employer TMM (St. Vincent) Ltd T/A TMM Yacht Charters must pay… and not the Managing Director of TMM Yacht Charters must pay…
With respect to Irrationality, Counsel asserted the following:
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(i) The Respondent failed to understand the law on severance under the Act in that the Act provided for suspension of the Employee by the Company pending a decision in a matter relating to his involvement in dishonest conduct concerning property belonging to the Company;
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(ii) The Employee was not dismissed by the Applicant and employment not terminated. As provided under Section 19 of the Act in particular 19 (2) (c), the employer was within its rights to suspend the Employee having regard to the circumstances of an investigation into alleged misconduct of the Employee supported by a signed confession of the dishonest conduct from the Employee's alleged partner one Carlton Culzac;
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(iii) As a consequence, the Company would have been within its rights to dismiss the Employee but instead suspended the Employee without pay.
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(iv) The Respondent erred in his Decision in stating that suspension without pay was tantamount to a dismissal.
With respect to "Delay" as set out in CPR Part 56.5 and in making the application for leave for judicial review more than six months after the Decision was made and the factors that the Court must have regard to, Counsel submitted that the delay does not rest solely on the shoulders of the Applicant.
Counsel asserted that the practice of the Labour Department for parties to collect Notices and Decisions is not one that should be associated with a body that performs a judicial function and that one would expect that it would carry out its functions in a manner in keeping with the proper execution of justice. Parties should be expected to be served with Notices and Decisions delivered as is legislated, so as to avoid delay in the receipt of same.
Section 38 (1) of the Act states that the Hearing Officer will issue Notice of Hearing… and not that parties will collect the Notice. According to Counsel her interpretation is that the onus is placed on the Hearing Officer to provide the Notice whether by personal service or notification of the hearing date, but service of the Notice would be the appropriate manner. A telephone call without more and with no explanation of its content was insufficient.
The appeal to the Tribunal was an alternative remedy but not pursued within the statutory time due to the late receipt of the Decision. Counsel considered that the delay of more than six months before making the application for leave was not unreasonable delay.
With respect to CPR 56.5 (2) (a), Counsel submitted that it is in the interest of good administration that Notice of the Hearing should be given by delivery to or service on...
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