Cartwright v Bahamas Princess Hotel
| Jurisdiction | Bahamas |
| Judge | Georges, C.J. |
| Judgment Date | 01 May 1985 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Equity Side No. 11999 of 1984 |
| Date | 01 May 1985 |
Supreme Court
Georges, C.J.
Equity Side No. 11999 of 1984
Mr. Maurice O. Glinton for Bahamas Princess Hotel.
Mrs. Anita Allen for the Minister and Arbitration Tribunal.
Arbitration - Application for order of certiorari to quash reference of trade dispute to Arbitration Tribunal by Minister — Industrial Relations Act, 1970, s. 70A — Whether referral of the dispute by the Minister 14 months after failing to reach a settlement was done “forthwith” — Words contemplate reasonably prompt action considering the circumstances — Fourteen months deemed too long — Arbitration Tribunal therefore had no jurisdiction to entertain matter.
Prohibition - Application seeking an order prohibiting Arbitration Tribunal from proceeding with hearing of a dispute — Industrial Relations Act, 1970, ss. 12, 13(1) — “Ouster clause” — Not to be interpreted in way to conflict with jurisdiction of Supreme Court to supervise proceedings of inferior tribunal entrenched in the Constitution of the Bahamas — Arbitration Tribunal therefore amendable to writ of prohibition.
Pursuant to leave granted, the applicant Bahamas Princess Hotel seeks (1) an order prohibiting the Arbitration Tribunal purportedly under the Industrial Relations Act, 1970, as amended (“the Act”) from further proceeding with the hearing of a trade dispute filed by Daisy Mae Cartwright (“the employee”) under section 67 of the Act; and (2) an order of certiorari to remove into the Supreme Court and quash the reference in respect the aforesaid trade dispute to the Arbitration Tribunal by the Minister.
The employee had, for some 7 years prior to 25 October 1982, worked as general cashier in the applicant's accounting department. She was on that day dismissed allegedly for failing to carry out control procedures and being extremely negligent in the handling of the assets of the applicant in her charge. The applicant paid her on termination the sum of $4,290.00, which she accepted without prejudice to any further claims to which she may have been entitled.
On 2 August 1983, the employee notified the Minister under section 67 of the Act of the existence of a trade dispute between the applicant and herself. The allegation was that she had been wrongfully dismissed and that she had been defamed. Acting on the report the Minister required the parties to seek to resolve their differences by reconciliation. A meeting was held under the chairmanship of Mr. Edgecombe, a senior official in the Ministry. The employee and her legal representative were present as was the applicant's legal representative. The effort proved fruitless.
Mr. Glinton in his affidavit does not say whether or not Mr. Wallace-Whitfield indicated what his intentions were at the end of the conciliation session. Both Mr. Wallace-Whitfield and Mr. Edgecombe agreed that he indicated that he was likely to file an action in the Supreme Court.
Thereafter nothing happened until 23 May 1984 when Mr. Edgecombe received a letter from Mr. Wallace-Whitfield asking, “the matter be proceeded with”. The minister was advised of the complainant's request on 15 August, 1984 and the matter was referred to arbitration on 1 October 1984. A notice dated 1 October 1984, was served on the applicant stating that the matter had been referred to arbitration and requiring it to submit the name, telephone number and mailing address of the person it wished to recommend for appointment as arbitrator on the panel. Failure to comply with that request could make the applicant liable to a fine not exceeding $500.00. Thereupon these proceedings were launched.
Although not arguing it as a preliminary point, Mrs. Allen for the Attorney-General contended that certiorari did not lie in relation to the Minister's decision to refer a matter to arbitration under Section 70A of the Act. For the reasons set out in the case of Irene Harvey and Cole-Thompson Pharmacies Equity Side #315 of 1984, I agree that the exercise by the Minister of his powers under section 70A are not reviewable by this Court.
Once the Minister has exercised the power and referred the matter to an Arbitration Tribunal, the jurisdiction of the Arbitration Tribunal to enter upon the arbitration may be subject to review in so far as the Act as amended permits this.
The constitution and proceedings of an Arbitration Tribunal are dealt with in the Fifth Schedule to the Act as amended. Sections 12 and 13 of that Schedule read: -
“12. The award of an Arbitration Tribunal on reference by the Minister pursuant to section 70A of the Act may, by leave of the court and judge, be enforced in the same manner as a judgment or order to the same effect.
13(1) Subject to paragraph (2) a decision of an Arbitration Tribunal in any matter before it under this Act--
a. shall not be challenged, appealed against, reviewed, quashed or called in question in any court or on any account whatever; and
b. shall not be subject to prohibition, mandamus, or injunction in any court on any account whatever, and as respects any trade dispute referred to it under this Act shall be binding on the employers and employees to whom the reward relates.
2. Any party to a matter brought before an Arbitration Tribunal shall be entitled as of right to appeal to the Court of Appeal on a point of law from any decision, order, or award of an Arbitration Tribunal and the decision of the Court of Appeal on any such appeal shall be final.”
The sections make plain that once an Arbitration Tribunal embarks upon an arbitration its powers are to be unassailable as the broadest use of protective terms makes possible. An award by an Arbitration Tribunal must clearly affect the rights of the parties made subject to its jurisdiction. It would accordingly be a body subject to review by the Supreme Court except in so far as Parliament has indicated that it is not to be so subject.
In South East Asia Fire Bricks Sdn Bhd v. Non-Metallic Mineral Products Manufacturing Employees Union & others [1980] 2 All E.R. 689 the Privy Council considered a section of the Industrial Relations Act (Malaysia) which reads: -
“Subject to this Act, an award of the court shall be final and conclusive, and no award shall be challenged, appealed against, reviewed, quashed or called into question in any court of law.”
Delivering the opinion of the Board Lord Fraser of Tullybelton stated at p.692: -
“…the final words ‘quashed or called into question in any, court of law’ seem to their Lordships to be clearly directed at certiorari. ‘Quashed’ is the word ordinarily used to describe the result of an order of certiorari, and it is not commonly used in connection with other forms of procedure …. If ‘quashed’ were for some reason not enough, the expression ‘called into question in any Court of law’ is in their Lordships’ opinion amply wide enough to include certiorari procedure. Accordingly they are of opinion that para (a) does oust certiorari at least to some extent.
The second question then arises. The decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission [1969] 1 All E.R. 208 shows that when words in a statute oust the power of the High Court to review decisions of an inferior tribunal by certiorari, they must be construed strictly, and that they will not have the effect of ousting that power if the inferior tribunal has acted without jurisdiction or, if it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity ( [1969] 1 All E.R. 208 at 213 per Lord Reid). But if the inferior tribunal his merely made an error of law which does not affect its jurisdiction, and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective.”
Although certiorari was the particular writ being discussed by their Lordships, the remarks would in my view equally apply to prohibition. As Atkin, L.J. stated in R. v. Electricity Commissioner ex parte London Joint Electricity Committee [1924] 1 K.B. 171 at p.206: -
“I can see no difference in principle between certiorari and prohibition except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.”
It may be urged that the ouster clause in the Fifth Schedule of the Act is in somewhat broader terms than that in South East Asia Fire Bricks Sdn Bhd v. Non-Metallic Mineral Products Manufacturing Employees Union (supra). Arguably, however, section 13(b) of the Fifth Schedule does no more than itemize in detail matters already dealt with in section 13(1) (a) which is in terms identical with the ouster clause in the South East Asia Fire Bricks case (supra). This appears to be so because the writs of prohibition and mandamus and the injunction are no more than remedies claimed when it is sought to challenge, appeal against, or have reviewed or quashed any decision of an inferior tribunal. Somewhat surprisingly certiorari has been omitted from the enumeration in section 13(1) (b). The words “on any account whatever” in section 13(l)(b) does not in my view expand the reach of the ouster clause. The reason for this is stated very lucidly in the judgment of Lord Reid in the Anisminic case (supra) at p. 213: -
“Statutory provisions which seek to limit the jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to...
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