C

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

SLTIT NO. MI05 OF 2000

BEFORE: THE HONOURABLE MR. JUSTICE WOLFE, CHIEF JUSTICE

THE HONOURABLE MR. JUSTICE CLARKE
THE HONOURABLE MR. JUSTICE MARSH

IN THE MATTER OF AN APPLICATION BY

JAMAICA FLOUR MILLS LIMITED

AND

IN THE MATTER OF AN AWARD BY THE

INDUSTRLAL DISPUTES TRIBUNAL,

i AND

IN THE MATTER OF THE LABOUR

RELATIONS AND INDUSTRIAL DISPUTES
ACT

BETWEEN JAMAICA FLOUR MILLS LIMITED - APPLICANT

AND THE INDUSTRIAL DISPUTES TRIBUNAL - RESPONDENT

Ransford Braharn and Miss Daniella Gentles instructed by Miss Angella

Robertson of Livingston Alexander and Levy for the Applicant

Mrs. Nicole Foster-Pusey instructed by the Director of State Proceedings for the
Respondent

<; \
Lord Gifford, Q.C, and Miss Kerry Brown for the National Workers Union, an
interested party

Heard on July23,24,25 and December 17, 2001

 WOLFE, C.T.

The applicant seeks an Order of Certiorari to quash the award of the

Industrial Disputes Tribunal arising out of a dispute between the applicant and

the National Workers Union.

Three workers employed to the applicant and represented by the

c) National Workers Union, which held bargaining rights for workers employed at

the applicant's plant, Jamaica Flour MiUs Ltd. had their contract of employment

terminated by letter dated August 13,1999 on the ground of redundancy.

Accompanying the termination letters of each employee was a cheque for

payment in lieu of Notice. Two of the employees, namely, Michael Campbell

and Ferron Gordon duly encashed the cheques. Up to the date of hearing the

other employee Simon Suckie had not collected his cheque.

C: Arising out of the termination orders all other workers represented by

the National Workers Union took industrial action by way of strike action in

solidarity with their fellow workers.

The Honourable Minister of Labour and Social Security pursuant to

section llA(l)(a)(i) of the Labour Relations and Industrial Disputes Act referred

the dispute to the Industrial Disputes Tribunal.

"To determine and settle the dispute between Jamaica

Flour Mills Limited on the one hand and the National
Workers Union on the other hand over the termination
of employment on the grounds of redundancy of
Messrs. Simon Suckie, Michael Campbell and Ferron
Gordon."
 Having heard the evidence the Tribunal on October 10,2000 made the

following Award.

"THE TRlBUNAL by majority HEREBY ORDERS the

Company to reinstate the workers Suckie, Campbell
and Gordon with effect from the 13" August, 1999 (the
date of the purported dismissals):-

(i) in respect of Mr. Simon Suckie with full wages,

and

(ii) in respect of Messrs. Michael Campbell and

Ferron Gordon with sixty percent (60%)of their
wages up to the 21stof October, 2000 or the date
on which the Company re-engages them and
they resume their duties, whichever is earlier
and full wages thereafter."

The grounds upon which relief is sought are:

(i) The Industrial Disputes Tribunal failed and/or neglected to

properly construe the employment (Termination and Redundancy

Payments) Act and in particular section 5 of the said Act.

(ii) The Industrial Dispute Tribunal failed to appreciate that the

Applicant was entitled to dismiss Messrs. Simon Suckie, Michael

Campbell and Ferron Gordon (hereinafter referred to as the "said

employees") in circumstances where the requirements of the

applicant for the said employees of a particular kind or for

employees to carry out work of a particular kind in the place

where he was so employed, have ceased or diminished or are

expected to cease or diminish.

(iii) The Industrial Disputes Tribunal failed -

(1) To evaluate or to properly evaluak; or

(2) To give any weight or any sufficient weight to clause 21 of the

Collective Labour Agreement which expressly permitted the

Applicant when making -

"paramount change resulting from the introduction of

new system techniques, machinery or equipment which
allows a reduction of the work force to dismiss the said
employees by reason of redundancy".

(iv) Clause III of the Collective Labour Agreement recognizes

Management's rights as follows:

"The Company shall have the sole right to direct the

workforce, the right to hire, to assign, to discipline or
discharge for just cause; the right to plan, direct and control
plant operations; the right to introduce new or improved
production methods, facilities or facility arrangements; the
amount of supervision and work force necessary;
establishment of reasonable rules, determining job duties,
scheduling of production; establishment of quality
standards; determination of the exknt to which the facilities
will be operated; and production or employment to be
increased or decreased are rights vested exclusively in the
Company; the Industrial Disputes Tribunal failed to
consider this provision or give any or any sufficient weight
to this provisionf'

(v) The Industrial Disputes Tribunal, having found that the Applicant

led "cogent evidence justifying the company's redundancy

decision", fell into error when it held the dismissal of the said

employees to be unjustified.
(vi) The Industrial Disputes Tribunal erred in law when it rejected the

Applicant's submission that redundancy payment and dismissal

are synonymous.

(vii) The Industrial Disputes Tribunal failed to properly construe

and/or apply the Labour Relations Code.

(viii) The Industrial Disputes Tribunal erred in law when it elevated the

Labour Relations Code to a rule of law or treat the Labour

Relations Code as binding on the parties.

(ix) The Industrial Disputes Tribunal failed to give weight and/or any

sufficient weight to the evidence led on behalf of the applicant

explaining the reasons for not allowing the Labour Relations Code

which were infer alia:

That the applicant gave notice of intention to terminate the

contracts of employment by reason of redundancy on the morning

of 13August 1999 as the applicant feared that any additional notice

could result in sabotage, harm to the public and/or damage to its

plant and equipment. The approach of the applicant was

determined by its previous experiences at its plant when

terminating the contract of employment of employees by reason of

redundancy.

(x) The Industrial Disputes Tribunal failed to abide by its terms of

reference and or acted in excess of the said terms of reference.

 (xi) The employees, having voluntarily and unconditionally accepted

payment in lieu of notice, the Industrial Disputes Tribunal ought to

have treated their contracts of employment as being lawfully and

properly terminated and consequently the Industrial Disputes

tribunal erred in law and/or misdirected itself when it ordered

employees reinstated.

(xii) The Industrial Disputes Tribunal ought to have given the applicant

permission to lead further or fresh evidence relating to the

employment of Michael Campbell subsequent to his dismissal.

(xiii) The Industrial Disputes Tribunal acted in excess of its jurisdiction

and/ or without jurisdiction.

(xiv) The Industrial disputes Tribunal acted ultra uires and asked itself

the wrong questions and took into consideration irrelevant matters

and/or failed to consider relevant matters.

(xv) The Industrial Disputes Tribunal acted unreasonably and

arbitrarily.

Mr. Braham for the applicant crystallised the position of the applicant by

stating that Judicial Review was being sought on the first two grounds

established in Council o f Civil Sewice Unions and others v. Minister o f the

Civil Service [I9841 3 AER 935, namely:

 1. Illegality or error of law

2. Irrationality or the Wednesbury unreasonableness

The arguments will therefore be examined against this background.

1. Illegalifv or Error of Law

Counsel contended that the employees were dismissed pursuant to

c: section 5 of The Emplovmmt (Terntination and Redundanw P a m m t s ) Act

which stipulates as follows:

"(1) Where on or after the appointed day an employee who

has been continuously employed for the period of one
hundred and four weeks ending on the relevant date is
dismissed by his employee by reason of redundancy the
employer and any other person to whom the ownership
of his business is transferred during the period of twelve
months after such dismissal shall, subject to the
provisions of this Part,be liable to pay to the employee a
sum (in this Act referred to as a 'redundancy payment')
calculated in such manner as shall be prescribed.

(2) For the purposes of this Part an employee who is

dismissed shall be taken to be dismissed by reason of
redundancy if the dismissal is attributable wholly or
partly to -

(a) the fact that his employer has ceased, or intends

to cease, to carry on the business for the purposes
of which the employee was employed by him or
has ceased, or intends to cease, to cany on that
business in the place where the employee was so
employed; or

(b) the fact that the requirements of that business for

employees to carry out work of a particular kind,
or for employees in the place where he was so
employed, have ceased or diminished or are
expected to cease or diminish; or
 (c) the fact that he has suffered personal injury
which was caused by an accident arising out of
and in the course of his employment, or has
developed any disease, prescribed under this Act,
being a disease due to the nature of his
employment"

Counsel submitted that once an employer shows that he has observed the

provisions of section 5 when dismissing an employee on the ground of

C: redundancy the question of unfair dismissal or unjustifiable dismissal cannot

properly arise.

How did the Tribunal approach the redundancy question?

The Tribunal said:

"Counsel led cogent evidence justifying the Company's

redundancy decision but it is not essential to our
decision in this case to make a definite finding as to the
fairness of the Employer's decision that there was a fair
case of redundancy and we make none. Our dominant
concern is with the dismissal itself and we repeat our
rejection of the submission that "redundancy" and
"dismissal" are synonymous, the former being projected
as merely a form of the latter. Each is a discrete entity."

Indeed, Counsel's written submission conceded the following:-

"the procedure and effects of a redundancy can be

challenged as unfair by a dismissed employee if the
redundancy was badly handled and therefore unfair on
general principles."

The Tribunal's approach, as I understand it from the above quotation, is

that the real issue is whether the redundancy exercise was fairly executed.
 This approach had its genesis in the provisions of the Labour Relations

Code, section 3 (4) of the Labour Relations and Industrial Disputes Act which

slates:

"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 sM3 be taken into
account by the Tribunal or Board in determining that
question,"

The Labour Relations Code endorses the following principles, viz, that -

(i) work is a social right and obligation not a commodity

(ii) respect and dignity must be accorded to workers

(iii) industrial relations should be carried out with the spirit and intent

of the Code

(iv) Communication and consultation are essential features.

These principjes, the Tribmd concluded should be evident in the Company's

decisjon to make the em.p].oyeesredundant.

Acting on the premise that it was obligated to take into consideration the

provisions of the Labour Relations Code, the Tribunal took into consideration

the following evidence.

(i) The number of years each of the dismissed workers was employed to the

Company.
 (ii) The fact that the workers were advised at 215 p.m. on a work day, two

hours before the end of the work day, that they were dismissed by reason

of redundancy and were to collect their severance money at the office and

should not return to work the following day.

(iii) The reason proffered by the Company for dismissing without

consultation, viz., that it was the Company's policy, of long standing, to

dismiss without prior consultation.

This policy was born out of fear of sabotage which the Company had

experienced on two previous occasions.

The Tribunal having considered the above held that the dismissal was -

" U h i r , unreasorable and i~comiderable for the

Company to effect the dismissals in the way that it did.
It showed very little if any concern for the dignity and
human feelings of the workers. This is indeed
aggravated when one considers their years of service
involved. The officers who appeared before us lead us
to believe that this was not so intended but the effect
should have been foreseeable and avoided."

The Tribunal consequently found that the dismissals were unjustifiable.

In adopting this approach can it be properly said, that the Tribunal acted

illegally or erred in law?

( "\~)
-
..
'
Section 3(4) of the Labour Relations Code makes it obligatory for the

Tribunal in considering any matter before it, to take into account any provision

of the Code which may be relevant to the issues arising before the Tribunal.
 It is not true to say that the Tribunal used non-legislative provisions or

non-binding provisions to override "the obvious statutory provisions".

All the Tribunal did was to use the provisions of the Labour Relations

Code to assist it in its determination as to whether or not the Redundancy was

justifiable in the circumstances.

To say that because the employer has complied with section 5(2) of the

Employment Termination and Redundancy Payments Act, there can be no issue

of unfair dismissal or unjustifiable dismissal, is wholly misconceived. There

may be grounds for Redundancy but the manner in which the Redundancy is

effected may cause it to be classified as unfair or unjustifiable dismissal.

Indeed, Counsel who appeared for the applicant conceded the view

expressed above. (see the award ofthe Tribunal) s u p .

Reliance upon the decision of the E m p l o ~ e n tAppeal Tribunal in

- Stores PLC v Burrell [I9973 I.C.R. p. 523 does not in my view assist the
Safeway

applicant. The issue in that case had to do with whether or not the dismissal

was by way of Redundancy. In the instant case, the issue is whether the

dismissal, be it for Redundancy or otherwise, was justifiable.

The applicant also relied upon the provisions of section 12(7) of the

Labour Relations and Industrial Disputes Act, but suffice it to say, the

provisions of section 1 2 0 are in applicable to the present circumstances.

Section 12(7) deals with situations where the reference to the Tribunal involves
 questions as to wages, or as to hours of work or any other terms and conditions

of employment.

It is my considered opinion that the approach of the Tribunal in dealing

with the reference was impeccable. There was nothing in the approach which

could be said to amount to illegality or an error in law.

This ground therefore fails.

2. Irrationalitv or The Wednesburv Unreasonableness

A decision will be held to be irrational or unreasonable where the

decision making authority has acted so unreasonably that no reasonable

authority would have made the decision.

Counsel for the applicant submitted that the Tribunal was obliged to take

(- 1
all relevant matters into consideration in giving effect to its mandate to settle the
0
L-'
dispute between the parties. The Tribunal was also obliged, he continued, to

exclude from its consideration all irrelevant and extraneous matters.

It was therefore incumbent on the Tribunal to consider the governing

legislative scheme and all other law or legislation relevant to the issues which

were to be determined.

Counsel argued that the reference to the Tribunal required it to settle a

< dispute over the termination of employment on the ground of Redundancy, and

therefore, the Tribunal was bound to make a finding as to whether or not the

workers were dismissed by reason of Redundancy.

 There is nothing irrational or unreasonable about the Tribunal's

approach. The Tribunal in its approach was prepared to and did in fact make a

concession as to the reason for dismissal being Redundancy. The Tribunal did

consider the question of Redundancy. The dismissal was by Redundancy but

the Tribunal went a step further and looked at the manner in which the decision

C: to make the workers redundant was arrived at.

There was no consultation and this is admitted by the applicant.

Paragraph 19 of the Labour Relations Code emphasises the importance of

consultation as a necessary ingredient in good industrial relations policy and

urges that management and workers or their representatives should therefore

co-operate in promoting communication and consultation within the

organization.
{-- 1
L.

Paragraph 11of the said Code admonishes that management should in so

far as is consistent with operational efficiency in consultation with workers or

their representatives take all reasonable steps to avoid redundancies.

Further, the Code stipulates that in consultation with workers or their

representatives, management should evolve a contingency plan with respect to

redundancies, so as to ensure that in the event of redundancy, workers do not

(-? face undue hardship and should endeavour to inform the worker, trade unions

and the Minister responsible for labour as soon as the need may be evident for

such redundancies.
 Failure, in my view, to observe the above stipulations may result in the

Tribunal finding that the dismissal by way of Redundancy was unfair or

unjustifiable. A finding that the dismissal by way of redundancy in such

circumstances was unfair or unjustifiable cannot be said to be irrational or

unreasonable.

As Rattray P said in Village Resorts Ltd. v . The Industrial Disputes

Tribunal and Another SCCA No. 6@7 (unreported) p. 10:

"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."

An examination of the reasons for the award clearly illustrates that the

CI submission by counsel, for the applicant, that the Tribunal failed to take into

account all relevant matters and included in its deliberations irrelevant or

extraneous matters is indeed baseless.

The acceptance of payment in a redundancy situation does not make the

redundancy exercise justifiable or fair p o se.

Reliance upon the dictum of Theobalds J in R v. Minister o f Labour and

Emplol/ment, The Industrr'al Disputes Tribunal, D e v m Bawett, Lionel H e n q

(- j and Llovd Dawkins Ex Parte West Indies Yeast Co, Ltd. (1985) 22 TLR p. 407

that once payment is accepted the contract of employment is legally ended, is

misplaced.
 In that case the workers accepted the payment without demur, as

Gordon J pointed out. In the instant case the two workers accepted the cheques

some seven to ten days after their dismissal and after they had mandated their

union to challenge the dismissal.

For the reasons set out above the ground based upon irrationality and

unreasonableness fails.

Accordingly, I would order that the motion be dismissed.

 I CLARKE, J

1 The applicants apply for judicial review to have certiorari go to quash

an award of the Industrial Disputes Tribunal (the Tribunal) dated October

10,2000 made in relation to an industrial dispute between the applicants and

c:i the National Workers Union (the Union) concerning the dismissal of three

1 workers on the ground of redundancy.

The three dismissed workers, Simon Suckie, Michael Campbell and

Ferron Gordon, had been members of a bargaining unit at the applicants'

plant and were represented by the Union. The letters of dismissal dated
,'--.,,
August 13, 1999, delivered to them at the work place by the applicants on
L."l

.the afternoon of that day are in these terms:

"Jamaica Flour Mills is currently engaged in the restructering

of certain operations, with the objective of achieving greater
operational efficiency. As part of this exercise, your contract
of employment with Jamaica Flour Mills Limited will be
terminated Friday August 13, 1999.

The circumstance of your separation entitle you to receive, on

the effective date, the following:

1. Payment of lieu of Notice

2. Separation Payment
3. Payment of unused and prorated vacation leave
4. Payment for accumulated sick leave
 A Settlement Option on Termination of Service Form,
relating to the Pension Scheme, is also attached for your
attention.

Please return all keys identification card, health cards and any
C., other property of the company in your possession by 4.30
p.m. today.

We wish to place on record our most sincere appreciation for

your contribution to the company over the years. Please
accept our best wishes for success in all your future
endeavours.

Yours truly.

Dennis McGee
General Manager"

Despite the placatory tone of the final paragraph of the letters a

dispute arose over the dismissals. Efforts to settle it at the local level and at

the Ministry of Labour and Social Security failed. Thereupon, the Minister

pursuant to the section 1lA(l)(a)(i) of the Labour Relations and Industrial

Disputes Act (LRIDA) referred the dispute to the Tribunal for settlement
C'J with the following terms of reference:

"To determine and settle the dispute between Jamaica

Flour Mills Limited on the one hand and the National
Workers Union on the other hand over the termination
of employment on the ground of redundancy of Messrs
Simon Suckie, Michael Campbell and Ferron Gordon.
 After a protracted hearing, the Tribunal by a majority found that the

dismissals were unjustifiable and, on the firther basis that the three workers

C' wished to have their jobs back, ordered the applicants to reinstate them.

The applicants have challenged the Tribunal's award on two main

grounds. Fully argued before us are those two grounds, namely:

1. Illegality or error of law;

2. Irrationality or Wednesbury unreasonableness.

Illegalitv

The applicants contend in the first place that in light of the fact that

Michael Campbell and Ferron Gordon accepted their "redundancy and

notice payments" and encashed their cheques there was no dispute in

relation to those two workers over which the Tribunal had jurisQction. The

Tribunal, they say, therefore erred in law in holding that these two workers

were entitled to challenge their dismissal as being unjustifiable.

For this submission the applicants rely on the following dictum of

Theobalds, J in R v. Minister of Labour and Employment, The I.D.T.

 and Other ex parte West Indies Yeast Co. Ltd. (1985) 22 J.L.R. 407 at

414A:

"Once you accept payment then you are accepting

the terms on which such payment is made or ofered
and the contract of employment is legal& brought to
an end".

It is enough to say that .the West Indies Yeast Co. Ltd. case is

distinguishable fiom the case before the court, for as Gordon, J (as he then

-- .A
was) pointed out in that case, "[tlhe respondents did not challenge their
,-,'
t. "' 1'
%%

dismissal but accepted the letters as payment without demur" as a

consequence of which no dispute existed which would enable a reference to

be made under section 11A(l)(a) of the LRTDA. In the instant case the

dismissed workers protested and challenged their dismissal at once even

though two of them accepted the payments. A dispute therefore clearly

arose over which the Tribunal had jurisdiction. And it must be borne in
C<._/'

mind that whilst at common law such contracts are brought to an end by

dismissal and not by acceptance of payments, under the LRIDA the

dismissals may be found to be unjustifiable. The Act gives no discretion to

the Tribunal where it finds that the dismissals were unjustifiable and the
 workers wish to be reinstated. The Tribunal must in those circumstances

order reinstatement: see section 12(5)(c)(i). So on that basis the Tribunal did

not err in law when it ordered the reinstatement of the three workers.
0
The following passage in the section numbered 7(a) of the Tribunal's

award constitutes the foundation of Mr. Braham's remaining submissions

under the ground of illegality:

"Counsel led much cogent evidencejustzjjing

the Company 's redundancy decision but it is
not essential to our decision in this case to
make a deJinitiveJinding as to thefairness of
the Employer's decision that there was a fair
case of redundancy and we make none".

By declining to consider the question of redundancy and the law relating to

it the Tribunal erred in law, so Mr. Braham contends. An employer who

establishes that he has complied with the provisions of section S(2) of the

Employment (Termination and Redundancy Payments) Act and has

accordingly dismissed his employee, has, so the argument runs, dsmissed

C, the employee justifiably. According to Mr. Braharn, in circumstances where

the employer has complied with section S(2) of that Act there cannot be any

issue of unfair or unjustifiable dismissal.

 Section 5 of the Employment (Termination and Redundancy

C, Payments) Act (ETRPA) provides so far as is relevant as follows:

" (1) Where ... an employee ... is dismissed by

his employer by reason of redundancy, the
employer ... shall ... be liable to pay to the
employee a sum (in this Act referred to as
a "redundancypayment")

(2) For the purposes of this part an employee

who is dismissed be taken to be dismissed
by reason of redundancy fthe dismissal is
attributable wholly or partly to

(a) ...
(3) thefact that the requirements of that
businessfor employees to carry out
work of a particular kind, in the place
where he was so employed, have ceased
or diminished or are expected to cease
or diminish ...

Grant that on the evidence before the Tribunal the requirements for a

redundancy situation as set out under section 5(2)@) were met, it must be

observed that there is nothing in the terms of the ETRPA which

automatically justifies a dismissal made on the grounds of redundancy. As

Lord Gifford, Q.C. points out, the ETRPA does not preclude the Tribunal, if
 a dispute should arise over a dismissal, fiom finding that even if the

dismissal was on account of redundancy it was unjustifiable. And as Mrs.

Foster-Pusey put it succintly in argument, all dismissals can be scrutinized

(-- by the Tribunal pursuant to section 12(5) of the LRlDA where a dispute is

referred to it to determine whether or not the dismissals are justifiable.

Section 12(7) of the LRTDA does not, in my view, fetter the authority

of the Tribunal so to do. Mr. Braham's submission to the contrary is, with

respect, misconceived. Subsection 7 down to paragraph (a) reads:

"(7) where any industrial dispute referred to

the Tribunal involves questions as to
wages, or as to hours of work, or as to
any other terms and conditions of employment,
the Tribunal -

(a) shall not, ifthose wages or hours of work, or

conditions of employment are regulated or
controlled by any other enactment, make any
award which is inconsistent with that enactment".

That subsection deals with disputes over wages or hours of work or any

other terms and conditions of employment. The present dispute is of a

(-
x-

wholly different character. Subsection 7(a) provides that if such wages or

conditions are regulated under an enactment, the Tribunal shall not make an

award inconsistent with that enactment. Instances given by Lord Gifford of

what the subsection is designed to ensure are appropriate: if for instance,

 there is a statutory pay freeze, the award may not breach the limits of the

freeze; or if a statute provides for maximum hours of work, or minimum

safety requirements, the award may not be inconsistent with such provisions.

There is, in my judgment, nothng inconsistent with .the ETRPA for a

O
Tribunal to find that a dismissal on the grounds of redundancy was

nevertheless unjustifiable. The LRIDA was enacted a year after the

enactment of the ETRPA. If Parliament had wished to exclude redundancies

from the purview of the Tribunal it would have done so by express words.

Test the matter further: the other main provision of the ETRPA

c' prescribes minimum periods of notice of termination. But plainly, the giving

of due notice does not necessarily justify a termination. A dismissal may be

lawful (under common law concepts of contract) but unjustifiable in the

view of a Tribunal: see Village Resorts Ltd v. The Industrial Disputes

Tribunal and Another S.C.C.A No. 66/97 (Unreported) per Rattray, P at

pp. 12-13, Bingham, J.A. at pp 48-50. In that case complaint was made that

the Tribunal had not made a finding as to whether the dismissals were

lawful. Bingham, J.A. trenchantly disposed of that contention in this way

which I find instructive:

"That in my view was not the issue to be

determined. The very terms of the reference
 24
make that clear. The critical question was
as to whether the dismissals werejustifiable".

It is, I think, convenient to set forth the whole of section numbered 7

of the Tribunal's award as follows:

"7 EXTENT OF JURISDICTION

C!
(a) Counselfor the Company submitted that:

The issue which arises is whether the Industrial

Disputes Tribunal (1DT) has the jurisdiction to
determine whether the decision of an employer
to enter into a situation which resulted in the
creation of redundancies was fair or not.

The Tribunal does not have the jurisdiction to

Determine the issue as stated above.

We acknowledge the substantial merit in part

Of this submission, but we hold that the
Tribunal can decide whether a genuine case of
Redundancy exists in any case before it.

Counsel led much cogent evidencejustijjing

the Company's redundancy decision but it is
not essential to our decision in this case to
make a definitivefinding as to thefairness of
the Employer's decision that there was afair
case of redundancy and we make none.

@) Our dominant concern is with the dismissal itself

and we repeat our rejection of the submission
that 'redundancy ' and 'dismissal ' are synonymous
the former beingprojected as merely a form of the
latter. Each is a discrete entity.

(c) Indeed Counsel's written submission conceded the

 'theprocedure and effects of a
redundancy can be challenged
as unfair by a dismissed employee:-

I . ...

2. 'Ifthe redundancy was badly

handled and therefore unfair
on general principles.

Wefind that this concession is substantially relevant to the

gravamen of this subject dispute ".

=',- ,
Observe that in this case the duty of the Tribunal was to settle the
L- dispute. The dispute concerned two main issues:

(1) whether there was a genuine redundancy situation

at all;

(2) whether even if there was such a situation there had

been proper consultation with the employees or their

representatives.
r=-,
kr-j
If the Union had succeeded on the first issue it would have been unnecessary

to consider the second issue since, as Lord Gifford points out, the dismissals

would have been found to have been false. The Tribunal made no finding on

the first issue. It went on to consider the second issue and resolved it in
 26

favour of the Union. Having so found, it was not required to find one way

or another on the first issue, for an adjudicating body is obliged to make only

such findings as are necessary for its decision. So, in those circumstances,

as has been correctly submitted, it is not material for the applicants to

O
rehearse the evidence which tended to show that there was a redundancy

situation, for that cannot help them to succeed on the second issue.

So too, in cases relied on by the applicants, for e.g. Safeway Stores

PLC v Burrell [I9971 I.C.R. 523, the only issue was whether there was a

true redundancy situation. No complaint was made in those cases as to the

c.1 fairness of the procedures. In any event those cases concern the

interpretation of the Industrial Relations Act, 1971 (U.K.) according to

which the employer may succeed if he shows (a) that he had one of a

number of specified reasons for the dismissal, one of which is redundancy;

(b) the dismissal was fair and equitable. On the other hand the LRIDA

requires the Tribunal to determine the broad question whether the dismissal

was unjustifiable.

Reading the whole of section 7 of the award the reasoning of the

Tribunal is, in my view, sound. In his written submissions Lord Gifford's

summary of the Tribunal's reasoning is, I venture to say, correct and I set it

out:

There may be cases which turn on whether

or not there was a genuine redundancy
situation; in such case the Tribunal should
make ajinding on the issue and thisJinding
will determine whether the dismissal was
justiJiable or not;

(6) but there are other cases, of which this is one,

when the proceedings have been so bad,
and the breaches of the Code so flagrant, that
whether or not there was a genuine redundancy
situation, the dismissals were unjustlJable. In
such cases there is no need to make ajnding as
to the genuiness of the redundancy situation
since whatever way the finding was made the
outcome would be the same".

Still on the issue of illegality I now consider whether, as Mr. Braharn

submits, the Tribunal purported to elevate the Labour Relations Code to a

rule of law. For this submission he relies on the following passage in the

section numbered 8 of the award:

"Quite often, as in this case, non compliance

with the Code is explained on the ground
that it is not enacted law but merely a set of
guidelines and not binding.

... The Code is as near to law as you can get.

The Act mandates it. It consists of 'practical
 guidance by the Minister after consultation
with Employers and Employees. It was (as
legally required) approved by both the Senate
and the House of Representatives and can
only be amended in the same manner as
originally established It is a statement of
National Policy.

Failure to comply with it is not an offence

but Employers and Employees disobey or
disregard it at the risk of other perils rf
disputes reach the I.D. T.

The Act at sec. 3(4) compels the I. D. T. .. .

to take its provisions 'into account ' where
relevant. To quote: -

'A failure on the part of any person

to observe any provision of a labour
relations code which isfor the time
being in operation shall not of itself
render him liable to criminal
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 ".

In keeping with this statutory mandate, we have taken

the relevant provisions of the Code into account in
arriving at our decision herein jl.

I accept Mrs. Foster-Pusey's submission that the Tribunal did not purport to

elevate the Code to a rule of law but gave its provisions the significant
 weight as is required. In its assessment of whether the dismissals were

unjustifiable the Tribunal was constrained by statute to take into account any

relevant provision of the Code in determining that question: see section 3(4)

of the LRIDA. The Code, as the Tribunal correctly pointed out, consists of
0
"practical guidance" by the ~ini'sterafter consultation with employers and

employees. This observation accords with the dictum of Rattray, P. in The

Village Resorts case at page 10 as follows:

"Essentially, therefore, the Code is a road,

map to both employers and workers towards
the destination of a co-operative working
environmentfor the maximization of
production and mutually beneficial human
relationships".

The Tribunal's observation that the Code is "as near to law as you

can get" was made in response to the submission that the Code is not

enacted law. The observation was based on the statutory origin and

application of the Code as set out in LRIDA. I agree entirely with Lord

Gifford that looking at the whole treatment by the Tribunal of the Code, the
<
- comment was a fair one and that no error of law is revealed.

Plainly, the Tribunal was entitled to treat as significant the failure of

the applicants to consult as the Code implores. Emphasizing that

 29

consultation is an essential feature of good labour relations the Code

provides:

"Communicationand consultation are necessary

ingredients in a good industrial relations policy
as these promote a climate of mutual understanding
and trust which alternately result in increased
efficiency and greater job satisfaction management
and workers should therefope co-operate in
promoting communication and consultation with in
the organization.

Consultation is thejoint examination and discussion

ofproblems and matters affecting management
and workers. It involves seeking mutually
acceptable solutions through a genuine exchange
of viewsandinformation". (Section 19)

And in the context of redundancy the Code underscores ,the importance of

consultation:

"Recognition is given to the needfor workers to

be secure in their employment and management
should sofar as is consistent with operational
efJiciency -
(g ...
(ii) in consultation with workers or their
representative take all reasonable
steps to avoid redundancies;

(iiiJ in consultation with workers or their

representative evolve a contingency
plan with respect to redundancy so
 1 as to ensure in the event of redundancy
30
that workers do not face undue hardship.
In this regard management should
endeavour to inform the worker trade
union and the Minister responsible for
labour as soon as the need may be
evidentfor such redundancies".
(Section I I )
':I( Since the Tribunal correctly treated the question of non-observance of those

provisions of the Code as relevant to, but not conclusive of, the issue as to

I whether the dismissals were justifiable, I can see no basis for contending, as

I Mr. Braham does, that the Tribunal "e'evated the Code to a rule of law.

Irrationality
?-.
The Tribunal examined the reason given by the applicants for failure
LJ
to consult in accordance with the Code, namely, the fear of sabotage, It

found that reason, or the evidence to support it, inadequate. That finding of

fact was entirely within the province of the Tribunal to make on the basis of

the evidence adduced before it. As a court of review, this court ought not to,

in my judgment, interfere with that finding unless it is manifestly

C! unreasonable, which clearly it is not. It is plain that "fear of sabotage" could

not reasonably be used, without considerable evidence to support it, as a

reason for not consulting with the Union about redundancies. On the

contrary, the provisions of the Code for consultation are, as was argued on
 behalf of the Union, designed to promote harmony in the work place and

thus to avoid resentment which may lead to disfunction or sabotage.

There is, in my view, no basis for the applicants' contention that the

Tribunal acted so unreasonably that no reasonable Tribunal would have

O
made the decision in question. There has been no proof that the Tribunal

failed to take all relevant matters into consideration or that it failed to omit

from its consideration all irrelevant or extraneous matters. Nor is there any

foundation for the submission that the Tribunal in coming to its decision

placed excessive weight on the Labour Relations Code and paid no or

C') insufficient regard to other relevant considerations.

Accordingly, for the foregoing reasons I would dismiss the motion.

 Marsh, J.

The Applicant Jamaica Flour Mills Limited, by Judicial Review, seeks

an order of Certiorari to quash the award of the Industrial Dispute Tribunal

(the Respondent dated the 1 0 day

~ of October 2000, made in relation to a

dispute between the Jamaica Flour Mills and the National Workers Union.

The terms of reference to the Industrial Disputes were as follows: -

"To determine and settle the dispute between Jamaica Flour Mills

Limited on the one hand and the National Workers Union on the

other over the termination of employment on the grounds of

redundancy of Messrs. Simon Suckie, Michael Campbell and

Ferron Gordon."

It is the consequent award by the Industrial Disputes Tribunal which

is being impugned by the Applicant and for which an order of Certiorari is

being sought to quash it. The applicant submitted that it is clear fiom a

reading of the Award that the Tribunal based its decision exclusively on its

c-1
x. .
interpretation of the said Labour Relations Code and that the Applicant acted

in breach of it.

The.Tribuna.1, it was further submitted, failed to consider this issue

andlor the law relating to redundancy.

 The Tribunal stated:

"Counsel led much cogent evidence justifying the Company's

redundancy decision but it is not essential to our decision in this

case to make a definitive finding as to the fairness of the

Employer's decision ,thatthere was a fair case of redundancy

and we make none."

The Application for Judicial Review in this case is based on the

following two grounds: -

(a) illegality or error of law; and

(b) irrationality or the 'Wednesbury' unreasonableness.

A further submission of the Applicant is that the Tribunal would have

discovered that the Employment (Redundancy and Termination Payments)

Act, in particular section 5 thereof, sets out a statutory regime whereby an

employer may opt to dismiss an employee by reason of redundancy. Section

5 of the said Act reads thus:

"5- (1)Where on or after the appointed day an employee who has

been continuously employed for the period of one hundred and
four weeks ending on the relevant date is dismissed by his
employer by reason of redundancy the employer and any other
person to whom the ownership of his business is transferred
during the period of twelve months after such dismissal shall,
subject to the provisions of this Part, be liable to pay to the
employee a sum (in this Act referred to as a 'redundancy
payment') calculated in such manner as shall be prescribed.
 34

(2) For the purpose of this Part an emplovee who is dismissed

shall be taken to be dismissed bv reason of redundancv if
the dismissal is attributable wholly or partly to -

(a) the fact that his employer has ceased, or intends to

cease, to carry on the business for the purposes of
which the employee was employed by him or has
ceased, or intends to cease, to carry on that business in
the place where the employee was so employed; or
C:: (b) the fact that the requirements of that business for
employees to carry out work of a particular kind, or for
employees to carry out work of a particular kind in the
place where he was so employed, have ceased or
diminished or are expected to cease or diminish; or

(c) the fact that he has suffered personal injury which was
caused by an accident arising out of and in the course
of his employment, or has developed any disease,
prescribed under this Act, being a disease due to the
nature of his employment."

An employer therefore, it is submitted, who established that he had

complied with the provisions of Section 5(2) of the aforesaid act and has

dismissed his employee accordingly, has dismissed his employee justifiably

- no issue of unfair dismissal or unjustifiable dismissal. These statutory

provisions cannot be overridden by non-legislative provisions and the

Tribunal is not permitted to use the Labour Relations Code to override

obvious statutory provisions.

 35

If the evidence of redundancy was said to be cogent then the Tribunal

ought properly to come to the view that the dismissal was justifiable

pursuant to the Employment (Termination and Redundancy Payments) Act.

The Tribunal fell into error when it simply ignored the evidence and

terms of the Employment (Termination and Redundancy Payments) Act.

The Applicant having led cogent evidence of redundancy, the Tribunal acted

ultra vires in coming to a decision which is contrary to the said

"Employment (Termination and Redundancy) Act.

The burden of the submission is that since the Tribunal indicated that

the evidence of redundancy is cogent, the Tribunal was duty bound to find

that dismissal was justifiable, since S. 5(2) of the aforesaid Act would have

been satisfied.

A dismissal on the grounds of redundancy may well be unfair and

unjustifiable e.g. where the selection of persons to make redundant is on the

basis of race or religion or whether redundancy is carried out without

adequate consultation.

The Applicant further submitted that the Tribunal had a duty to take

all relevant matters into consideration and to omit from its consideration all

matters irrelevant or extraneous. Tribunal ought to have reviewed all the

law relevant to the issues before it for determination.

 "A failure on the part of any person to observe any

provisions of a Labour Relations Code which is for the

time being in operation shall not of itself render them

liable to any proceedings, but in any proceedings before

the Tribunal or a Board any provisions of such code which

appears to the Tribunal or a Board to be relevant to any

questions arising in the proceedings, shall be taken into

account by the Tribunal or Board in determining that

question."

Gordon J. A. stated in R. v. Industrial Tribunal en parte Egbert G.

Dawes (1984) 21 JLR 49 at page 6 1:

"The Labour Relations Code is not an Act of Parliament

but guidelines for promoting good labour relations. It
is of persuasive force and should be applied unless good
cause Is shown to the contrary.'"

There was no consultation as contemplated by the Code. Even then

the Applicant conceded that there was a ccdiscussion"with the Union Officer

who sought a delay which was not granted. This was on the very same day

as the workers were notified of ,their dismissals.

The situation in West Indies Yeast case, relied on by the Applicant is

distinguishable from the instant case. The workers in that case took the

cheques and then complained subsequently. In the instant case it was

notorious that there was complaint. The workers had taken industrial action

for some eight days before two of them took the cheques.

It is therefore not possible on the facts of the instant case to say that

the workers did not challenge their dismissals but accepted the letters and
"

payments without demur." Gordon J.A. in the West Indies Yeast case.

It is my view therefore that the reliefs sought in paragraphs 1 and 2 of

the Originating Notice of Motion be refused. Costs to be Respondent's to be

agreed or taxed.