Johnson v National Insurance Board

JurisdictionBahamas
CourtIndustrial Court
JudgeDemeritte-Francis, V.P.
Judgment Date09 Jun 2015
Docket NumberIT/ES/176/14

Industrial Tribunal

Demeritte-Francis, V.P.

IT/ES/176/14

Johnson
and
National Insurance Board
Appearances:

Mr. Dennis Williams on behalf of applicant.

Mr. Huedly Moss on behalf of respondent.

Employment Law - Industrial dispute — Tribunal procedure — Time limits — Whether trade dispute report statute — barred — Whether tribunal had jurisdiction to adjudicate matter — Application dismissed.

DEMERITTE-FRANCIS, V.P:
PRELIMINARY RULING
INTRODUCTION
1

By Certificate of Referral dated 15th September, 2014 the Minister referred the subject dispute to the Industrial Tribunal.

2

In accordance with Rule 3(1) of the Industrial Relations (Tribunal Procedure) Rules, 2010 a Notice for an Originating Application (Form A) was sent by the Secretary to the Tribunal to the applicant on 16th October, 2014 to the registered postal address provided to the Tribunal.

3

Upon receipt by the applicant of the Notice for an Originating Application, the applicant filed in the Tribunal an Originating Application dated 24th October, 2014.

4

A Notice of Appearance (Form D) and the Defence (Form E) was filed on 9th February, 2015 in the Tribunal by counsel for the respondent.

5

In accordance with Rule 8(2) the Secretary to the Tribunal issued a Notice of Hearing (Form J) dated 15 April 2015 to the applicant and the respondent. The matter was listed to be heard on 20 and 21 May 2015.

6

At the hearing counsel for the respondent raised a point in limine for a decision to be made by the Tribunal. The preliminary points raised by counsel for the respondent comprised the following:

  • (1) Jurisdiction pursuant to section 68(2) of the Industrial Relations Act;

  • (2) No cause of action outlined in the Trade Dispute pursuant to section 68(3)d

JURISDICTION PURSUANT TO SECTION 68(2) OF THE INDUSTRIAL RELATIONS ACT
7

Firstly, counsel for the respondent submitted that the Tribunal had no jurisdiction to hear the matter presently before it pursuant to section 68(2) of the Industrial Relations Act, Chapter 321 having regard to the fact that the matter had been filed out of time by the applicant. The respondent made application to the Tribunal to have the matter struck out and dismissed pursuant to section 68(2).

8

Section 68(2) reads as follows:

“A trade dispute may not be reported to the Minister if a period of more than twelve months has elapsed since the dispute first arose, and any dispute not reported within that period shall be deemed to have been determined, so however, that the Minister may in any case extend such period if he considers it Just to do so.”

9

Counsel for the respondent submitted that the applicant's dispute originated in 2001 and it was his view therefore that the dispute first arose in that year. In support of his statement the respondent provided documentation of an undated correspondence written to the respondents from the Union of Public Officers evidencing a “Demand for Payment for Service provided by Member Lydia Johnson” in the sum of $208,624.36 with details of the breakdown for each year, for a period of 13 years. The first paragraph states:

“The Union of Public Officers demand immediate promotion to Executive Secretary post retroactively to February 2001; as well as remuneration to our Member for services provided in the capacity as Executive Secretary for the period February 23rd, 2001 to February 28th, 2014 as follows:”

10

Counsel for the respondent submitted that the Trade Dispute Report which was filed with the Department of Labour on the 18th December, 2013 is clearly outside of the time limit of twelve months for filing a Trade Dispute. Furthermore there is no evidence that the Minister had exercised his discretion to grant an extension to extend the time to file a trade dispute in this matter.

11

In addition, the Tribunal is in receipt of a copy of the Trade Dispute Report which was forwarded from the Department of Labour with an attachment. The attachment is a letter dated 13th January, 2009 written to the applicant by the respondent referenced as “Re: Revision of Allowances Payments”, signed by Richenda King, Assistant Director, Human Resources and Training.

12

The abovementioned correspondence reads as follows:

January 13, 2009

Mrs. Lydia Johnson

Private Secretary

Information Technology Department

National Insurance Board

RE: Revision of Allowances Payments

Reference is made to your inquiry into the above referenced matter as per your communications dated June 13 and 17, 2008 and January 2, 2009.

Please be advised that this matter was reviewed and Management has determined that the amount of $4115.46 is due to you. This amount represents the difference in emoluments that you should have received in respect of Responsibility and Acting Allowance payments for duties you performed during the leave and presence of Mrs. Olivia Farrington, former NIB employee, who held the title of Executive Secretary.

Your payment………………

13

In response, Counsel for the applicant stated that a Trade Dispute Report when reading the relevant legislation could not be read in isolation. That is, not to be read outside the relevant registered industrial agreement (if there is one) which had been duly registered in accordance with the Industrial Relations Act, Chapter 321.

14

Counsel indicated that there was an Industrial Agreement in place and Article XXXVI of the Agreement outlined the grievance procedure for employees who had a grievance with the respondent.

15

He further submitted that the Trade Dispute Report could not be reported to the Department of Labour until all internal meetings between the parties had ended.

16

In counsel's view a Trade Dispute Report only came into existence where the matter was not resolved in accordance with the Industrial Agreement or internally. He submitted that as long as one party is talking to the other party there is no trade dispute arising and that any discussions in-house is considered a grievance. A grievance in his opinion is not considered a trade dispute until a Trade Dispute Report is made to the Minister.

17

It was submitted that the parties were still in meetings internally up to May 2013 and possibly even up to August, 2013. The trade dispute was reported to the Minister on the 18th December, 2013 which Counsel contends falls within the statutory period of the twelve months as required by section 68(2).

18

The dispute in this matter in counsel's view did not first arise until May, 2013 and possibly up to August, 2013. In support counsel referred to a letter dated 24th May, 2013 exhibited in the respondent's; Bundle written to the applicant referenced as “RE: OUTSTANDING MATTER WITH THE NATIONAL INSURANCE BOARD” written by the Chairman of the Board and it reads as follows:

May 24, 2013

Mrs. Lydia Johnson

Private Secretary

Information and Technology Department

The National Insurance Board

Dear Mrs. Johnson,

RE: OUTSTANDING MATTER WITH THE NATIONAL INSURANCE BOARD Thank you for your letter of May 23, 2013 and the kind sentiments expressed therein.

I have made exhaustive enquiries and interventions on your behalf. Unfortunately Management and Human Resource Committee are unanimous in their position that they are unprepared to change their recommendations in this regard.

I can only urge you to carefully consider the proposal as recommended by Management since ultimately, the right to promote rests with management.

Sincerely,

Dr. James Moultrie

Chairman — Board Directors

National Insurance Board

19

Counsel for the applicant submits that this letter of 24th May, 2013 is evidence that the parties were still in discussions at least up to May 2013. Therefore time would begin to run from May 2013 for the filing of a Trade Dispute Report with the Department of Labour.

20

The Tribunal does not accept the submission put forward by the applicant that time begins to run at the end of the internal meetings between the parties, that a trade dispute does not arise and could not be filed with the Department of Labour until the end of the meetings and the Tribunal does not accept that a grievance is not a trade dispute.

21

In considering the meaning of the word “grievance” reference is made to the dictionary definition. “Grievance proceedings” is defined in A Dictionary of Law, Second Edition written by L B Curzon as follows:

“Arrangements, usually involving some adjudicatory process by which an employee in dispute with his employer may seek a settlement.”

22

The word “Dispute” is defined in the Concise Oxford English Dictionary as follows:

“A disagreement between management and employees that leads to industrial action.”

23

It is clear from the two definitions given above that a grievance is a dispute and it is a dispute which can lead to industrial action. It is the Tribunal's view that the lodging of a Trade Dispute Report does not prevent settlement discussions being entered into by the parties to an action. The word “trade dispute” or “dispute” is defined by the Industrial Relations Act and states the following:

“means any dispute or difference or apprehended dispute or difference between one or more employers and one or more employees, or between one or more employees and one or more other employees, which is connected with the employment or non-employment or the terms or conditions of employment, of any...

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