Dismissed UWI employee loses bid for IDT referral

An employee of The University of the West Indies (UWI), Mona, who was fired from his job six years ago, has lost his bid to have his dismissal referred to the Industrial Disputes Tribunal (IDT).

Donovan Brown, who had been fired from his job in 2017 after 30 years, was in February given the go-ahead by the Supreme Court to challenge the labour minister’s refusal to send his case to the tribunal.

On March 3 last year, the labour minister ruled that he would not refer the matter to the IDT but Justice Andrea Pettigrew-Collins granted leave for Brown to apply to the Judicial Review Court for an order to quash that decision as well as a decision of the Visitor of the university not to hear the dispute.

The Visitor is the individual appointed to hear disputes at The UWI.

After the vice-chancellor of the university had rejected Brown’s appeal against his dismissal, he filed a petition with the Visitor, but the Visitor declined jurisdiction to determine the petition, noting that he could not rule on alleged breaches of the Labour Relations Code (LRC) and also that the vice-chancellor decision predates his appointment.

The labour ministry, however, appealed the judge’s decision and the Court of Appeal in a recent decision set aside the judge’s order and refused Brown’s application for judicial review.

“While the learned judge correctly determined that the decision of the Visitor declining jurisdiction to hear the respondent’s petition was not susceptible to judicial review, regrettably, she fell into error when she granted leave to the respondent to review the appellant’s decision refusing to refer the matter between the respondent and the university to the IDT on the basis of irrationality.

“That error was due to a misunderstanding of the law on her part, which provides a basis for the court to set aside her decision,” the Court of Appeal said in a recently published judgment.

CONFLICT OF INTEREST

The acting purchasing manager was fired from his job after questions arose regarding his association with a company which was a supplier of goods to the university. It was alleged that there was a conflict of interest as a result of his affiliation with the company and that there was misconduct on his part.

But the ex-employee, who claimed he had disclosed his affiliation and had received approval from the university to carry on transactions, contended that his dismissal was unjust and breached the Labour Relations and Industrial Disputes Act (LRIDA) as well as Section 22(ii)(b) of the LRC because he had never faced disciplinary proceedings before and ought not to have been dismissed for a first infraction unless there was gross misconduct on his part.

Brown had challenged his dismissal but failed to arrive at an amicable resolution with the university, despite several conciliatory meetings over two years.

After he was dismissed by the vice-chancellor, he sought the Ministry of Labour’s intervention in June 2020 to have the matter referred to the IDT but was refused. He was, however, advised by the ministry to consider placing the matter before the Visitor.

Brown’s petition to the Visitor did not bring him any relief and he again turned to the ministry, which held firm in its decision to not refer the matter.

INDUSTRIAL DISPUTE

During the hearing, the lawyers for the ministry argued that the learned judge erred when she found that there was an industrial dispute in the context of the LRIDA, and, therefore, the appellant’s decision not to refer the case to the IDT following the ruling of the Visitor was irrational.

State lawyer Stuart Stimpson submitted that the proper course the court should have taken, in the circumstances, was to order that the Visitor’s decision be judicially reviewed.

However, Brown’s lawyer, Phillip Bernard, in his response averred that the learned judge was correct when she found that the Visitor’s decision declining jurisdiction, even if a mistake of law, was not an abuse of power and was beyond the scope of judicial review.

The appellate judge, however, found that the decision by the ministry to not refer the matter to the IDT was irrational, noting that the ministry had exercised its discretion not to do so.

The judges also found that, given the circumstances of the case, there was no dispute in the context of the LRIDA that could be properly referred to the IDT by the ministry.

In the same vein, the appellate found that the Visitor has exclusive jurisdiction over the matter.

“No concurrent jurisdiction exists between the Visitor, the court, and the IDT,” it said, noting that neither the court nor the IDT can provide Brown with the solace he seeks.

The judges, however, noted that while they were satisfied with the Visitor’s decision, the “inescapable inference” drawn from his response was that Brown’s petition was to be placed before a previous University Visitor who had the jurisdiction to consider it based on the date of the decision being challenged.

Jevaughnia Clarke also represented the ministry.

tanesha.mundle@gleanerjm.com