JAMAICA IN THE COURT OF APPEAL SUPREME COURT CIVIL APPEAL NO: 66/97 COR: THE HON. MR. JUSTICE RATTRAY - P. THE HON. MR. JUSTICE GORDON, J.A. THE HON. MR. JUSTICE BINGHAM, J.A. BETWEEN VILLAGE RESORTS LTD APPELLANT AND THE INDUSTRIAL DISPUTES TRIBUNAL FIRST RESPONDENT AND UTON GREEN representing the Grand Lido Negril Staff Association SECOND RESPONDENT Richard Mahfood, Q.C., Emil George, Q.C., & Dr. Lioyd Barnett instructed by Conrod E. George of Dunn, Cox, Orrett & Ashenheim for Appellant Lackston Robinson, Assistant Attomey-General instructed by Director of State Proceedings for Industrial Disputes Tribunal Lord Anthony Gifford, Q.C. Wentworth Charles, Hugh Wilson & Pierre Rogers instructed by Gifford, Haughton & Thompson for 2nd Respondent December 8, 9, 10, 11, 1215, 16, 17, & 19, 1997 February 23, 24, 26, 27, March 2, & June 30, 1988 RATTRAY, P. This appeal comes before us on a challenge by the appellant Village Rasorts Limited to the decision of the Full Court of the Supreme Court (Ellis; Kanison, P & Cooke JJ) which dismissed the motion of the appellant applying for orders af certiorari and prohibition to quash the award of the Industrial Disputes Tribunal made on the 22nd of November 1995 ordering the appellant to reinstate 225 persons whom the2 appellants had dismissed as employees of the hotel known as Grand Lido Negril. The ‘Tribunal's order was as follows: the Hotel to re-instate all of the 225 persons with effect from the date of their purported dismissals with Forty Percent (40%) of wages up to 30th November, 1995 and full wages thereafter.” For the purpose of the award ‘wages’ is defined by the Tribunal and there is no challenge in relation to this definition. ‘The appellant company owns the Grand Lido Hotel situated in Negril one of the premier tourism areas in Jamaica, As found by the Industrial Disputes Tribunal the hotel employees have been represented by the Grand Lido Negril Hotel Staff Association by what is described by the Tribunal as “a somewhat inadequate collective labour agreement signed by both parties on June 30, 1991 and amended and renewed thereafter.” The agreement was due to expire in March 1997 ‘The Association is not a registered Trade Union. The workers had lost confidence in the Association as they considered it to be unduly influenced by management and therefore unable to, and ineffective in advancing the interest of the employees. The Association itself supported the view as to its inability and ineffectiveness. On the 29th December, 1994 the Bustamante Industial Trade Union (hereinafter referred to as the BITU) obviously with the Association's consent, formally claimed bargaining rights on behalf of the workers. The management of the hotel denied the claim and refused to have any dialogue with the Union. The reason for that, refusal is stated in the "Factual Background of Outline of the Appellant's Submissions” provided to the Court of Appeal which inter alia reads: “Under the Labour Relations and Industrial Disputes Regulations 1975 where a Union makes a ciaim for representational right the Minister cannot cause a ballot to be taken for the determination of that claim eartier than 90 days before the expiration of any subsisting collective labour agreement. Accordingly the Union's claim was premature.”‘The Tribunal's Award contains the following comment: _is_interesting to note that apparently the question of voluntary determination did not arise" (see section 14 (1) of the Code -) [My underiining} This comment by the Tribunal is made because the cited section of the Labour Relations Code provides that although the Act and the Regulations prescribe the procedures and conditions for the taking of ballots to determine bargaining rights on behalf of the workers - *...this does not preclude the employers and trade unions from voluntarily determining claims to bargaining rights where: (2) there are no other trade unions representing or claiming to represent workers; (b) the employer js satisfied that the majority of workers in the proposed bargaining unit are members of the applicant union”. ‘There was no other trade union competing with the BITU for the representation of the workers and the Staff Association was in agreement with the BITU representing the workers. Any balloting taken therefore would be as to whether the majority of the workers were members of the BITU. {tis in this context that the underlined comment of the Tribunal is to be understood and becomes relevant in view of the Tribunal's finding as to management's attempts to dissuade support for Union Representation, Between January and March 28, 1995 eighteen to twenty-one workers had been dismissed by the Hotel according to the Association. The Hotel admits to seventeen to eighteen. A concem of the Association was "the justice, frequency and manner of dismissals - no charges formulated for reply and no hearings. The ‘employees were concemed about their job security”, On the moming of the 29th of March the hotel workers on the 7.00 a.m. shift as instructed by Mr. Uton Green, President of the Staff Association changed into their uniforms, clocked in, and assembled for a meeting with the General Manager,4 ‘Mir, James to discuss job security. This, on the Tribunal's finding was as a result of an understanding between Messrs. James and Green. Mr. Pearnel Charles of the BITU was present with the workers *.. but due to the rumours of Industrial action and the annoying presence of Mr. Charles, the “address” was not what the workers expected and to them was provocative rather than conailiatory". Mr. James told the workers to go back to work. This was at about 9.00 a.m. Between 10.30 and 11,00 a.m. Mr. James gave instructions in a letter to the workers to resume work immediately or face disciplinary action. The Company, he wrote, “is prepared to meet a representative of your Association as soon as resumption of work has been achieved.” At about 1.20 p.m. Mr. Green informed Mr. James that the workers were prepared to resume work if a “no victimization” clause was added to the letter. The request for the addition of such a clause was refused. Between 2.00 p.m. and 2.30 p.m. Mr. Green told Mr. James that all the workers would resume with o without the “no victimization” clause. ‘The time for resumption is in dispute between Mr. Green and Mr. James. The latter said 3.00 p.m. Mr. Green said with the 3.00 p.m. shift with a grace period to bring incoming staff up-to-date and with the latest resumption at 4.00 p.m. At 2.55 p.m. Mr. Green was summoned to Mr James’ office and was told by Mr. James that after 3,00 p.m. the workers wat! al have ahendoned their jobs. At 3.15 p.m. the gates were closed by security paras ane’ all watkers denied admission. Later in the night of the 23th dismissal letters were hurrisdiy prepared for delivery to the staff when they arrived next moming. They included letters to persons on leave and on day off who should not have been subject to this inclusion. This indicates the danger run in the mass dismissal of an entire workforce if there is not due deliberation. This lapse however was later remedied. It is to be noted that the Collective Labour Agreement is silent as to what breaches by the employee could result in dismissal or as to what procedures are available to be followed in respect of employees’ grievances. The Tribunal regarded5 the absence of proper disciplinary procedures and compliance therewith by management as envisaged by sections 5 and 22 of the Code “.. as serious and relevant.” In summary the Tribunal found: “1. That after the claim by the BITU for bargaining rights there was @ higher rate of dismissal by Hotel of staff than was usual in the normal staff tumover which the workers felt was no coincidence but an attempt by management to dissuade further support for the Union intervention. The Tribunal found it difficult to dismiss this perception by the Association. 2. That after the stoppage of work by the staff the discussions which took place between staff and management in an effort to achieve a resumption of work failed because of management's unreasonable attitude in ‘the following respects: 4) failure to agree to Mr. Charles of the BITU sitting as advisor to the workers which request, the Tribunal did not regard as unreasonable. in evidence the management representative had agreed that they would not have objected to an attomey-at-aw representing the workers; b) failure to agree to a ‘no victimization” clause in the letter which management had written calling upon the workers to retum to work; ©) after the workers had capitulated on (b) locking out the workers on the ground that they should return to work immediately, that is at 3.00 p.m. without regard to the workers representatives reasonable request to retum to work at 4.00 p.m. to allow them to inform the body of workers of the agreements arrived at their behalf.” It is clear that the Tribunal concluded that the real reason for the non- resumption of work was the management's determination to prevent the workers ‘employed in the Hotel from being represented by the Trade Union of their choice, the BITu. ‘A fuller narrative of the findings is to be found in the judgment of Cooke J in the Full Court and | confirm the accuracy thereof.6 Itis in these circumstances that the Tribunal determined that *() The 225 persons listed on appendix 1 were dismissed by the Hotel; {i) all such dismissals are unjustifiable, and (li) all 225 parsons wish to be reinstated." The grounds of appeal may be summarised as follows: Error and Misdirection Error and Misdirection by the Full Court in: (a) __holding that the word “unjustifiable” as used in section 12 (6)(0) of the Labour Relations and Industrial Disputes Act is synonymous with “unfair”; (b) holding that the evidence which justified dismissal at common law did not justify dismissal under the Act and that the Act gives a different meaning to the word unjustifiable than it bore at ‘common law. (©) falling (© apply the proper principles and canons of statutory inferptetation with respect to the meaning of the vord “unjystifiatle.” (6) failing ta follew the decision of the Court of Appeal in ti:e Four Seavong czse. (@) failing * hold thsi the Tribunal was in error in not determining that the appellant was acting lawiully in accordance with its contractual rights in dismissing the workers and in finding that the workers would have been satisfied with having their discussions with management with Mr. Charles as an advisor. In considering the validity of the submissions of counsel for the parties it will be useful to re-embark on the historical joumey taken by trade unions in Jamaica and which has moved the law with respect to industrial relations in Jamaica to the present juncture of arrival. Graham-Perkins, J in Barton and Others v. Alcoa Minerals of Jamaica Incorporated and Others [1971] 17 W.LR. 275 at 283 traversed a part of that route, The starting point is that at common law Trade Unions were “criminal conspiracies” and not recognized in law. The political and Trade Union history of7 Jamaica is indelibly underscored by the upheavals of 1938 and the emergence of Trade Unions as well as of the modem politcal parties. ‘The Constitution of Jamaica annexed to the Constitution Order in Council 1962 (S.1. 1982 No. 1550) provided in section 23(1) - "23. - (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right peacefully to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.” In 1971 Banton and Others v. Alcoa Minerals etc held as the headnote shows: "@ the fight of freedom of association guaranteed under the Constitution of Jamaica insofar as trade unions, are concemed invalved no more than the right of a worker to join or to belong to a union of his choice; (i) the right of a worker to join or to belong to a trade union of his choice does not include a right as against an employer to be represented by that union in negotiations with that employer, (ii) thare is no duty cast on an employer to recognise and treat with the union of an employee's choice.” Graham-Perkins, J at page 284 cited with approval industrial Relations in Great Britain by Flanders and Clegg [1963] as follows - “3. Collective Bargaining and the Law (@) Collective bargaining presupposes the willingness of employers to settle terms and conditions of employment by negotiation with trade unions. In other words, the first condition which must be fulflled is what is commonly called the ‘recognition’ by the employers of the unions as bargaining partners. In practice this problem is today of smaller importance in this than in many other countries. It is rare for large firms in Britain to refuse to bargain with unions. But the law does not compel an employer or group of employers to recognise unions and to bargain collectively. English and Scottish law may implicitly recognise the moral right of employees ‘io bargain collectively through representatives of their own choosing’, but they do not translate it into a legal Guty imposed upon employers to bargain with the unions...‘The recognition of trade unions, then, which is the linchpin of industrial relations today, does not rest ona ‘legat foundation.” Graham-Perkins, J. continued: “All that | have said above is as true of the situation in Jamaica as it is of that which exists in the United Kingdom. if this situation seeks a remedy, that remedy must be sought in the Parliament of this country through the coercive force of a sirong and enlightened public opinion.” Mt became clear therefora thst tha right of freedom and assembly and association in the Constitution of Jamaica did not guarantee a right of collective bargaining - (see also Attorney-General v. Mohamed Alli and Others [1987}41 WLR. 176. The route suggested by Graham-Perkins J was taken by the Parliament of Jamai in 1975 when it enacted the Labour Relations and Industrial Disputes Act and which became law on the 8th April, 1975. This Act and the Regulations made thereunder as well as the Labour Relations Code approved by Parliament in 1976 constitute the trinity of legislative sources from which the answers to the questions posed in this appeal will emerge. In historical terms it is also possible to determine the legislative mood and intention by reference to the enactment by Parliament of the following pieces of legislation in the field of employment during that period. a) The Minimum Wage (Amendment) Act 1974 which came into effect on the 13th November, 1974 authorised the Minister inter alia to establish a national minimum wage in respect of any occupation in the Island and impose penalties against an employer failing to pay the minimum wage so fixed, also to appoint a Minimum Wage Advisory Commission to advise him in this regard. b) The Employment (Termination and Redundancy Payments) Act which became law on the Sth December, 1994, legislated minimum periods of notice to be given by an employer prior to termination9 of the worker's employment as well as redundancy payments on termination. ©) The Employment (Equal Pay for Men and Women) ‘Act which became law on the 12th December, 1975 established legislatively the right of women to be paid ‘equally as men for equal work. The plank upon which the submission of counsel for the appellant rests is that the workers not having retumed to work at the time required by the employer for them to return, the employer exercised its legal right to dismiss them as it was entitled to do at common law. The Labour Relations and Industrial Disputes Act (‘The Act’) mandated the Minister to prepare and lay before Parliament a draft Labour Relations Code “containing such practical guidance as in the opinion of the Minister, would be helpful for the purpose of promoting good labour relations in accordance with - “(@)_ the principle of collective bargaining freely conducted on behalf of workers and employers and with due regard to the general interests of the public; (b) the principle of developing and maintaining orderly procedures in industry for the peaceful and expeditious settiement of disputes, by negotiation, conciliation or arbitration; (©) __ the principle of developing and maintaining good Personnel management tachniques designed to secure effective co-operation between workers and their employers and to protect workers and employers against unfair labour practices.” The Act further provided: "3, (4) A failure on the part of any person to observe any provision of a labour relations code which is for the ‘time being in operation shall not of itself render him liable ‘to any proceedings; but in any proceedings before the Tribunal or a Board any provision of such code which appears to the Tribunal or a Board to be relevant to any question arising in the proceedings shall be taken into account by the Tribunal or Board in determining that question.”10 ‘The Code indicates as one of "management's major objectives” good ‘management practices and industrial relations policies which have the confidence of all, It mandates that “the development of such practices and policies are a joint responsibility of employers and all workers and trade unions representing them, but the primary responsibility for their initiation rests with employers." Essentially, therefore the Code is a road map to both employers and workers towards the destination of a co-operative working environment for the maximization of production and mutually beneficial human relationships. In every collective labour agreement, and this includes the one between Grand Lido Negril and the Staff Association, the Act creates an implied procedure which is as follaws: “(@) the parties shall first endeavour to settle any dispute or difference between them by negotiation; and (b) where the parties have tried, but failed, to settle 2 dispute or difference in the manner referred to in paragraph (a) any or all of them may request the Minister in wniting to assist in setting it by means of conciliation: and (©) _all the parties may request the Minister in writing to refer to the Tribunal for settlement any dispute or difference which they tied, but failed, to settle by following the procedure specified in paragraphs (a) and ().” It establishes too, the Industrial Disputes Tribunal ("The Tribunaf’) to which industrial disputes are referred for settlement and whose decisions “shall be final and conclusive and no proceedings shall be brought in any Court to impeach the validity thereof, ‘except on @ point of law.” Persons who have special knowledge and experience of labour relations are appointed to hold the positions of Chairman or Deputy Chairman of the Tribunal and other members qualify as representatives of organizations representing employers and organizations representing workers. The specialistn knowledge component therefore of the Industrial Disputes Tribunal is clearly established. The Act, the Code and the Regulations therefore provide the comprehensive and discrete regime for the settlement of industrial disputes in Jamaica, Itis within the context of this regime that we must examine the submissions of counsel for the appellant in regard of the effect of the common iaw on the decisions of the Industrial Disputes Tribunal The relationship betwaen employer and employee confers a status on both the person employed and the person employing. Even by virtue of the modern change of nomenclature from master and servant to employer and employee there is clear indication that the rigidities of the former relationships have been ameliorated by the infusion of a more satisfactory balance between the contributors in the productive process and the creation of wealth in the society. The need for justice in the development of law has tested the ingenuity of those who administer Jaw to humanize the harshness of the common law by the development of the concept of equity. The legislators have made their own contribution by enacting laws to achieve that purpose, of which the Labour Relations and Industrial Disputes Act is an outstanding example. The law of employment provides clear evidence of a developing movement in this field from contract to status. For the majority of us in the Caribbean, the inheritors of a slave society, the movements have been cyclic, - first from the status of slave to the strictness of contract, and now to an accommodating coalescence of both status and contract, in which the contract is still very relevant though the rigidities of its enforcement have been ameliorated. To achieve this Parliament has legisiated a distinct environment including the creation of a specialized forum, not for the trial of actions but for the settlement of disputes.2 Where a dispute is referred to the Tribunal for settlement the Act provides (Section 12 (5) at paragraph (c): “(c)__ if the dispute relates to the dismissal of a worker the Tribunal, in making its decision or award - (@ shall, if it finds that the dismissal was unjustifiable and that the worker wishes to be reinstated, order the employer to reinstate him, with payment of so much wages, if any, as the Tribunal may determine; (i) shall, if it finds that the dismissal was unjustifiable and that the worker does not wish to be reinstated, order the employer to pay the worker such compensation or to grant him such ‘other relief as the Tribunal may determine; (ii) may in any other case, if it considers the circumstances appropriate, order that unless the worker is reinstated by the employer within such period as the Tribunal may specify the employer shall, at the end of that period, pay the worker such compensation or grant him such other relief as the Tribunal may determine, and the employer shall comply with such order.” ‘The meaning of the word “unjustifiable” in the Statute has loomed large in the submissions before us. The A: in this section has not used the word “wrongful” or the word “iilegal’. Indeed the Act identifies as ‘unlawful’, industrial action taken in an undertaking which provides an essential service and the hotel industry is not identified in the Statute as an “essential service’. The distinction between the words “unlawful” and “unjustifiabie” is evident. The Act eschews the use of the word “wrongful” with respect to dismissals. The usual common law term is therefor avoided. The Labour Relations and Industrial Disputes Act is not a consolidation of existing common law principles in the field of employment. It creates a new regime with new rights, obligations and remedies in a dynamic social environment radically changed, particularly with respect to the employer/employee relationship at the workplace, from the pre-industrial context of the commen law. The mandate to theB Tribunal, if it finds the dismissal “unjustifiable” is the provision of remedies unknown to the common law. Despite the strong submissions by counsel for the appellant, in my view the word used, “unjustifiable” does not equate to either wrongful or unlawful, the well Known common law concepts which confer on the employer the right of summary dismissal. It equates in my view to the word “unfair.” and | find support in the fact that the provisions of the Code are specifically mandated to be designed inter alia ... “to protect workers and employers against unfair labour practices. * (Sec. 3(1)(¢) of the Act) When the dismissals took place the workers’ Association had informed the management of the desire to retum to work without conditionalities at 4.00 p.m. This intention was frustrated by the locking out of the workers by management at 3.00 p.m. As was stated by Sir Hugh Griffith in the judgment of the National Industrial Court in Heath and another v. J. F. Longman (Meat Salesmen) Ltd [1973] 2 All E.R. 1228 at 1231- "But once the men had telephoned and told the employer that they no longer wished to withdraw their labour, and wanted to come back to work, they had in our view clearly ceased to be on strike. They made no conditions, and in the context of this case it must have been apparent that they were accepting the advice of the union and were ceasing their own unofficial action. It is true that the men were not back at work, but the employer knew he was no longer under strike pressure and the men’s absence had ceased 10 be in furtherance of an industrial dispute. The employer knew that as from the following moming he would have his work force back. Can it then be that he should then be free to dismiss them, without running the risk of its being considered unfair? The answer to that question was of course in the negative. Lord Gifford, Q.C. for the second respondent and Mr, Lackston Robinson for the first respondent have urged us to equate the word “unjustifiable” in the Act with the“ word “unfai used in other jurisdictions comparable to ours. Lord Gifford, Q.C. in particular sought and found support in the New Zealand jurisdiction and among other cases cited Auckland City Council v. Hennessey [1982] A.C. 699 in which Somers, J. in the Court of Appeal stated: "We think the word ‘unjustified’ should have its ordinary accepted meaning. Its integral feature is the word ‘unjust’ - that is to say not in accordance with justice or faimess. A course of action is unjustifiable when that which is done ‘cannot be shown to be in accord with justice or faimess.” In our own jurisdiction and in relation to the Labour Relations and Industrial Disputes Act, Smith, C.J. in R. v. Minister of Labour @ a Disputes Tribunal, Devon Barrett et al ex parte West 5] 22.J.LR. 407 at 409 stated: "Mr, Leo-Rhynie contrasted the provisions| with the provisions of the corresponding legislation where ‘unfair’ is used instead F understood him to concede that if s. 12 (5c) had used the word ‘unfair’ a worker could complain to the Tribunal in spite of a dismissal which was lawful. This concassion is, consistent with the views of the learned author of Harvey on Industrial Relations and Employment Law, cited by Mr. Leo-Rhynie. Dealing with the topic ‘Dismissal at common law - lawful and wrongful’ the view is expressed in para 11 (28.01) that even if a dismissal ‘is justifiable at common law, it is not necessarily justified under the statute, it is possible for an employee to succeed in a complaint of unfair dismissal even if he would lose in an action for wrongful dismissal’ The statute to which reference is made in the quotation is the Employment Protection (Consolidation) Act 1978 (UK). Then dealing with the topic, ‘The impact of Unfair Dismissal’, the leamed author says at para 11 (29.20) (op.cit): “The provision of unfair dismissal protection was designed to achieve a number of objectives. Together with the contracts of Employment Act 1963 and the RPA ... it marked a trend towards recognising that the employee has an interest in his job which is akin to a property right. A person's job can no longer be treated purely as a ‘contractual right which the employer can terminate by giving an appropriate contractual notice.’ Finally, it is stated at para 11 (29.22) that in essence, (unfair dismissal) differs from the common law in that it1s permits tribunals to review the reason for the dismissal. It is not enough that the employer abides by the contract. If he terminates it in breach of the Act, even if it is a lawful termination at common law, the dismissal will be unfair. So the Act questions the exercise of managerial prerogative in a far more fundamental way than the ‘common law could do.” ‘The leamed Chief Justice relied on the interpretation in the Oxford English Dictionary in which the word ‘unfair’ means * not fair or equitable, unjust’. "Unjust" means “not in accordance with justice or faimess.” He relied further on in Re Kempthorne Prosser & Co New Zealand. Drug Co Ltd [1964] NLR. 49 and the language of Dalghish, J at page 52: “In my view a person is ‘unjust’ when he does not observe ‘the principles of justice or fair dealing and an act can be said to be ‘unjust’ when itis not in accordance with justice or faimess. That is the ordinary dictionary meaning of the word ‘unjust’ and the word ‘unjustifiable’ ... has a related meaning.” ‘The CI ued: Justice cor “In my opinion, in the cases in which they are used in s. 12(5)(c) of the Act and in the corresponding UK legislation ‘the words ‘unjustifiable’ and ‘unfair’ are synonymous and the use of one rather than the other merely shows a preference of the respective draftsman.” With this opinion 1 am in complete agreement. In the Canadian jurisdiction, the Canada Labour Code RSC 1970 $81.5 provides machinery for the worker who considers he has been “unjustly dismissed" to submit his complaint to arbitration. In Deputy Attorney-General of Canada and Gauthier [1980] 113 D.L.R (8d) 419 the Federal Court of Appeal held at page 423 (Pratte, J), that the arbitrator exceeded his jurisdiction in ruling on the illegality of the dismissal in a Code which dealt with adjudication of complaint of “unjust dismissar’ The New Zealand and Canadian Authorities support the position taken by Chief Justice Smith in the West Indies Yeast Co., Ltd., case and as was said by Woodhouse, P. in the Court of Appeal, New Zealand, in B.W. Bellis Limited (Trading16 as the Coachman Inn) v. Canterbury Hotel, Hospital, Restaurant, Club and Related Trades Employees Industrial Union of Workers [1983] ACJ 956 at 959: “It is quite likely that a dismissal which may be entirely lawful yet deserve at the same time the label ‘unjustifiable’ will seem to be an elastic and novel concept for the lawyer. However, we do not think it can sensibly be defined in any precise way as a straightout matter of law. Instead the conduct under examination in any particular case will have to be assessed in its own context and whether it does or does not involve elements of a sufficiently unsatisfactory nature as to attract the criticism that the dismissal was affected by features or was handled in such a way as fo be unjustifiable, will then be decided virtually as an issue of fact.” That issue of fact is of course for the Tribunal. Ihave said enough to explain why | have not found assistance in the 19th century and earlier 20th century cases which have been cited by counsel for the ‘appellant in my consideration of @ determination made by the Tribunal under the Labour Relations and Industrial Disputes Act of Jamaica in the settlement of a dispute. AS Lord Bridge of Harwick stated in Wills v Bowley [1982] 2 All E.R. 654 at page 660 the aim in construing a statute is to ascertain the intention of Parliament as expressed in statutory language with due regard to social conditions at the date of the matters in question. That indeed is how we should interpret the provisions of the Labour Relations and Industrial Disputes Act. The Tribunal duly took into account the relevant factors as disclosed in the chronology of events which | have already cited. Thay disclose the lack of care with which the management considered the workers’ case in arriving at its decision for the wholesale dismissal of its work force. ‘The Four Seasons Case Quite apart from the submissions as to the meaning of the word “unjustifiable” in section 12(5)(c) of the Act the appellant has relied strongly on the decision of the Court of Appeal in Hote! Four Seasons Ltd v The National Workers’ Union [1985]W 22.J.L.R. 201. Counsel for the appellant maintains a similarity of facts between that case and the instant one, and that the rationale in that case is applicable to the instant appeal ‘The recital of the facts in the judgment of Carey, J.A. at page 203 of the Report does not disclose the similarity claimed by counsel for the plaintiff in this case. The basis of dissatisfaction, that is the refusal of the appellants to accommodate trade union representation does not exist since in Four Seasons the workers were members of a union which represented them at the workplace, to wit the National Workers Union. The Tribunal had found on the facts that the workers were not unjustifiably dismissed. In the instant case the Tribunal has found on the facts that the workers ‘were unjustifiably dismissed. The dicta of Carey, J.A. at page 204 is very relevant. After citing section 12 (4) of the Act which makes the award of the Tribunal final and conclusive and its validity unimpeachable except on a point of law, the learned Judge of Appeal stated: “The procedure is not by way of appeal but by certiorari, for that is the process invoked to bring up before the Supreme Court orders of inferior tribunals so that they may be quashed, Questions of fact are thus for the ‘Tribunal and the Full Court is constrained to accept those findings of fact unless there is no basis for them. Itis right then to emphasize the limited functions of the Full Court and to observe parenthetically that the Full Court exercises a supervisory jurisdiction and is bereft of any appellate role when it hears certiorari proceedings from the Industrial Disputes Tribunal. It is with this caveat in mind that | propose to approach a consideration of the proceedings before the court below.” ‘The findings of the Tribunal therefore in the instant case that the workers were unjustifiably dismissed is based upon findings of fact clearly stated and supported by evidence, The Full Court upheld the Tribunat's decision on the facts, and this cannot be disturbed by the Court of Appeal. In Four Seasons the Tribunals findings of fact were to the contrary. Insofar as Carey, J.A. stated in Four Seasons that:18 “it would be a grave misconception to hold that the Labour Relations and Industrial Disputes Act has altered the ‘common law principles of contract.” I hold that in the context of that case this was obiter dicta and | respectfully disagree that the principle can be so broadly stated with reference to settlement of disputes by the Industrial Disputes Tribunal. No doubt, if dismissed worker brings a common law action for wrongful dismissal, the common law principles would stil. apply ‘ir the determination of the case. However, if a matter comes to the Court irom the determination of the Industrial Disputes Tribunal, that matter must be dacided on a consideration of the provisions of the Labour Relations and Industrial Disputes Act, the Regulations made thereunder and the Labour Relations Code. The provisions of these legislative instruments have nothing to do with the common law and as | have emphasised constitute a modem regime with respect to employer/employee relationships, Even in the sphere of common law actions, judges have found ways of making some in-roads into and in so doing ameliorating the severity of common law decisions in this field. In Skinner Drilling Co Ltd v. Hill [1961-62] 4 W.LR,. 194 at page 196 the question before the Court in an action for wrongful dismissal was the alleged disobedience by the plaintiff of a lawful and reasonable order in the course of his employment. Marnan, J referred to @ statement made by Baron Alderson, in Turner v_ Mason (1845) 14M & W. 112; 153 E.R. 411 a case cited to us by counsel for the appettant, in which Baron Alderson said: “No doubt there are cases in which a servant would be justified in doing so (i.e. disobeying a lawful order), cases of absolute necessity, such as infectious disease, or a female servant in danger of violence from her master, or sickness, which rendered it necessary to consult a physician. Such cases, however, form the exception, of which obedience is the rule.” Maran, J then asked:» “What then is the position in law when a lawful order is followed by an unforeseen event which gives the servant cause to believe that he has or may have had good reason for not complying with it? In my view the answer to that question must depend on the facts of each case. If real danger ,'s involved Baron Alderson’s dictum is authority for tha ‘liew that the servant may disobey, even without refern to the master, though it would clearly be his duty to report the matter as soon as possible. But if, ‘on the other Hane, the supervening event is the occasion ‘of no more than inconvenience or distress to the servant and thus falls short of the cases of absolute nacassity ‘envisaged in Turner v. Mason [1845], 14 M& W 112; the servant is undoubtedly under an obligation either to carry out the order or to seek the master’s permission not to any it out, at least in cases, such as the present, where it is possible for him to do so.” The Collective Labour Agreement unknown to the common law, and the Industrial Disputes Tribunal, also a common law stranger, are vested with a jurisdiction relating to the settlement of industrial disputes completely at variance with basic common law concepts, with remedies including reinstatement for unjustifiable dismissal which were never available at common law and within a statutory regime constructed with concepts of faimess, reasonableness, co-operation and human relationships never contemplated 2y ¥, tornimon law. The rationale therefore in the cases of wrongful dismissal referred thd by counsel for the appellant provide no foundation on which the appellants case can safely rest For these reasons | would hold that the Full Court was correct in refusing to order certiorari to quash the award of the Industrial Disputes Tribunal and the appeal will therefore have to be dismissed20 GORDON J.A. (dissenting) On 28th March, 1995, the operations of the Hotel Grand Lido at Negril were disrupted by industrial action taken by some of the employees. This led to their dismissal, The matter was referred to the Minister of Labour and on Sth Apri, 1995 the Minister pursuant to section 11 A(1) (a) (li) of the Labour Relations and Industrial Disputes Act referred the matter to the Industrial Disputes Tribunal : “To determine and settle dispute belween Grand Lido on the one hand and Grand Lido Negril Staff Association on the other hand over the termine of the employment of Woshey Brown, Gwendolyn Noble ...and Gregory Miler”. | now turn to the report of the Tribunal for the threshold approach:- Amendments to Terms of Reference "By consent of parties, the names of the workers involved as cited in the Terms of Reference were amended to correct errors and omissions. The agreed list of Two Hundred and Twenty (225) workers dismissed and relevant to the dispute is appended hereto and headed Appendix |." Essence of Dispute “The Hotel's case is that at the material times on March 28th and 30th 1995, certain employees disrupted the Hotel's operations by taking Industrial action in the form of a stoppage of work. The action amounted to a strike which consiituted repudiation of their contracts of Employment entiting the Hotel to dismiss them summarily The Association's case is thal the stoppage of work was not a strike which would amount to @ repudiation of contract and that in tact the Hotel “lock-out” several of the workers at material times. The Hotel dismissed all the workers involved. The Association contends that the dismissals are ‘unjustifiable’ under Section 12 (5)(c) of the Act.”21 The Tribunal had twenty one (21) sittings which commenced on April 10, 1995 and ended on October 31, 1995. The Tribunal delivered its findings and made its award on November 22, 1995. ‘The Tribunal found that the 225 workers had been unjustifiably dismissed and ordered their reinstatement effective from the date of dismissal with payment of wages. The appellant moved the Supreme Courl for orders of certiorari and prohibition to quash the award of the Tribunal. This proved unsuccessful. The appellant have now takes its case on appeal seeking to have the order of the Suprome Court reversed and the award of the Tribunal quashed. The appellant filed and argued nine main grounds of appeal. At this point, find it convenient to state fully the first six grounds: “1, The learned judges in the Full Court erred and misdirected themselves in law in holding that the judgment of the Court of Appeal in the case of Hote! Four Seasons Lid v. The National Workers Union (1985) 22 J.L.R, 201, was inapplicable to the instant case in that the former case wes in all material respects on all fours with the instant case, being a decision on a reference to the Industrial Disputes Tribunal under the Labour Relations and Industrial Disputes Act and concerned with the withdrawal of their labour by hotel workers, a refusal to resume work unless their demands were met, the acceptance of their employer of their repudiation of their contracts of employment and the question of whether in those circumstances the Tribunal’s decision that their dismissal was justifiable was correct under the Labour Relations and Industrial Disputes Act. Further, the learned judges of the Full Court erred and misdirected themselves in holding that the decision of the Court of Appeal in the Four Seasons Case wes “concerned only with whether or not the employees were in fact dismissed, the issue of common law, and not with justifiability" (Harrison, J). The question before the Court of Appeal was whether or ‘not the decision of the Industrial Disputes Tribunal2 that the dismissals werejustifiable under the statute was correct. 2) the feared judges in the Full Court erred and misdirected themselves in law in holding that the word ‘unjustifiable’ as used in section 12(5)(c) of the Labour Relations and industrial Disputes Act is synonymous with the word “ unfair”. 3) the learned judges in the Full Court erred and misdirected themselves in law in reasoning that the evidence which justified dismissal within the terms of the Act and/or that the Act gives a differer Meaning or connotation to the word “unjustifiabl than it bore at common law. 4) the learned judges in the Full Court erred and misdirected themselves in that they failed to apply the proper principles and canons of statutory interpretations, namely: that- 1. the word “unjustifiable” should be given its ordinary meaning unless the context indicates the contrary; IL where a word has @ popular sense or a meaning in ordinary language or particular meaning at common law, it should be accorded that meaning unless an exceptional construction is necessary to give effect to the clear intention of the legistature; and ll, where there is an existing legal or contractual right, there is a presumption against its abrogation or impairment 5) the learned judges in the Full Court erred and misdirected themselves in law in falling to consider that at the very least the word “unjustifiable” means incapable of being justified or an inability to ‘show that there was sufficient reason for the action taken or that the action was unwarranted and falling also to consider that the Court of Appeal inB the Four Seasons Case was of the opinion that Smith, C.J. was in any event of the view that circumstances which would warrant a cause for dismissal clearly existed. 6) the learned judges in the Full Court erred and misdirected themselves in failing to appreciate that the Court of Appeal in the Four Seasons case at the very least regarded the unlawfuiness of the employees’ conduct and the lawfulness of the termination of their contracts of employment as an important factor ta be taken into consideration in determining whether or not their dismissals were unjustifiable and the decision of the Tribunal to ‘exclude that fact from their assessment of whether or not the dismissals were unjustifiable constituted a serious error of law with the result that its Award was seriously flawed, ‘The Tribunal in approaching its task derived the following guidetines from Court of Appeal decisions: "a) tis for the Tribunal to find and decide the case on the facts. b) The Tribunal must seek to avoid errors of law but its task is not an exercise in elaborate legal classification, c) The Tribunal must have regard to the equity and substantial merits of each case and look at the matter broadly and in the round ‘in an employment and industrial relations context and not in the context of the Temple and Chancery Lane’. 4) Parliament has given the Tribunal a very wide discretion as to the application of ‘unfair. This discretion appears to be wider in the Jamaica Act where unlike ‘unfair in the English Act the word ‘unjustifiable’ is undefined and not subject to the restrictions of descriptive examples”.