Everley Nelson v The Labour Tribunal
| Jurisdiction | St Lucia |
| Judge | Cenac-Phulgence, J,Justice Kimberly Cenac-Phulgence,High Court Judge |
| Judgment Date | 16 April 2018 |
| Judgment citation (vLex) | [2018] ECSC J0416-2 |
| Docket Number | SLUHCV 2015/0760 |
| Court | High Court (Saint Lucia) |
| Date | 16 April 2018 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Civil)
The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge
SLUHCV 2015/0760
Mr. Horace Fraser for the Applicant
Mrs. Brender Portland-Reynolds for the Respondent
Mr. Mark Maragh for the Interested Party
Present: Applicant
Mr. Victor Poyotte on behalf of the Respondent
Ms. Cheryl Renwick on behalf of the Interested Party
On 16 th April 2018, I dismissed the application by the applicant for leave to file a claim for judicial review with no order as to costs. I now provide written reasons for that decision.
The claimant, Ms. Everley Nelson (“Ms. Nelson”) was employed with Renwick & Company Limited (“Renwick”) from March 2003 until her dismissal on 26 th July 2013. At the time of her dismissal, she held the position of sales representative/key accounts.
On 2 nd July 2013, Renwick received a written complaint from Ultra Mart Inc. (“Ultra Mart”) alleging improper conduct on the part of Ms. Nelson while she was at work at one of Ultra Mart's outlets. The complaint was to the effect that Ultra Mart no longer wished to have Ms. Nelson visit its stores to take orders on its behalf due to her continued aggressive and loud personality.
On 2 nd July 2013, Ms. Julie Bonnett (“Ms. Bonnett”) informed Ms. Nelson of the complaint and asked her to give her account of the incident which she did. This was done in the presence of Ms. Janice Xavier. On 3 rd July 2013, in a letter captioned: “Notice of Disciplinary Hearing-Serious Misconduct”, Ms. Nelson was advised that an investigation into the matter was being conducted and that she was being suspended with pay pending the outcome of the investigation. That letter also informed her of a hearing which was to take place on 5 th July 2013 and stated that the purpose of the meeting was to give Ms. Nelson an opportunity to present her side of the case to be heard and to respond to the allegations which had been made. She was also advised that she had the right to legal representation.
The hearing did not take place on 5 th July 2013 as counsel for Ms. Nelson had insisted that all statements of witnesses and related documents be disclosed before any hearing could take place and also registered objections to Ms. Bonnett sitting as the tribunal, as this presented the reasonable appearance of bias and offended against the rules of natural justice.
The disciplinary hearing finally took place on 23 rd July 2013. Present at that hearing were the following persons: Ms. Julie Bonnett, HR Director of Renwick, Ms. Stephanie Waters, Scribe, Ms. Everley Nelson, Mr. Horace Fraser, counsel for Ms. Nelson, Mr. Mark Maragh and Mr. Thomas Theobalds, counsel for Renwick & Company, Mr. Sian Joseph and Ms. Joanna Triune as witnesses. Objection was raised at the hearing by Mr. Fraser to the presence of Ms. Bonnett.
By letter dated 26 th July 2013 and signed by Ms. Bonnett as HR Manager, Ms. Nelson was dismissed by Renwick. The relevant portions of the letter stated as follows:
“On 23 rd July 2013 you attended a disciplinary hearing where you were given an opportunity to be heard, to present your case, and be represented by Coun[sel], as it related to the formal written complaint issued to Renwick & Company Limited by Ultra Mart Inc., on 2 nd July 2013, of and concerning your conduct.
During the hearing you admitted that your loud tone and animated manner of communicating could have and in this instance, was perceived by the customer, as unprofessional and aggressive. In fact this is just one instance in a pattern of such complaints against you by this customer and others where disciplinary action has been taken and in a few instances, you have issued written apologies.
It is with regret that we now inform you that after careful investigation and consideration of your behaviour on 2 nd July 2013, at Ultra Mart, Micoud Street, the Company has come to the conclusion that your behaviour constitutes serious misconduct, sufficiently grave to warrant a major customer of the Company banning you from all their stores and as such, the Company finds it impossible and impracticable to continue the relationship of employment with you.
Accordingly, …your behaviour was both disrespectful and unprofessional to a longstanding and significant customer of the Company and warrants that your employment with Renwick and Company Limited be terminated effective today Friday 26 th July 2013. …”
Ms. Nelson complained to the Labour Commissioner that she was unfairly dismissed and set out the grounds of complaint which were that: (a) the allegation of serious misconduct was not proved within the ambit of section 133 of the Labour Act; 1 (b) the tribunal in arriving at its decision to dismiss the complainant took irrelevant and extraneous matters into consideration; (c) the hearing was conducted in breach of the rules of natural justice; (d) the decision to dismiss Ms. Nelson was harsh, unwarranted and unreasonable; (e) the hearing of the allegation of serious misconduct was a sham as the conduct of the proceedings gave the impression that the decision was predetermined before the hearing; and the suspension was totally unwarranted, unreasonable and constituted a penalty before the determination of the case contrary to section 142 of the Labour Act.
The Labour Tribunal delivered its decision on 4 th September 2015 and did not find in favour of Ms. Nelson.
The applicant seeks the leave of the Court to file a claim for judicial review against the decision of the Labour Tribunal dated 4 th September 2015 and seeks leave to claim the following relief:
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(a) A declaration that the Labour Tribunal misdirected itself and therefore erred in law when it sought to find evidence of actual bias which is in contradiction to the applicant's claim of lack of fairness in the proceedings and the real likelihood of bias.
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(b) A declaration that decision of the Labour Tribunal in relation to the allegation of breach of natural justice is wrong in law.
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(c) An Order of certiorari to quash the decision of the Labour Tribunal.
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(d) A declaration that the decision of the disciplinary tribunal is vitiated on the ground of breach of natural justice and lack of fairness and is therefore set aside.
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(e) An order directing that the matter be remitted to the Labour Tribunal for an assessment of damages.
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(f) Costs.
The Tribunal's findings as contained in its decision of 4 th September 2015 can be summarized as follows:
- Section 131 of the Labour Act sets out the grounds for deeming a dismissal unfair. None of the grounds stated in that section applied to the case of Ms Nelson. 2. By virtue of the descriptions of Ms. Nelson's behaviour towards Ms. Tribune, including the account of Mr. Sian Joseph and Ms. Nelson's own view of her general demeanour, it could be inferred that Ms. Nelson was loud and aggressive towards the Ultra Mart representative. The Tribunal found that the incident was so unsatisfactory to Ultra Mart that it caused them to complain to Renwick & Company about the representation being given to them. So unacceptable was the treatment that Ultra Mart requested to have no further interaction with Ms. Nelson. The Tribunal concluded that certainly this request constituted a situation which may have reasonably resulted in a discontinuation of business between Renwick & Company and their customer, Ultra Mart and the Tribunal concluded that there was serious misconduct on Ms. Nelson's part. 3. That while reference had been made to previous complaints made against Ms. Nelson, the letter of dismissal of 26th July 2013 stated that the decision to dismiss was based on Ms. Nelson's conduct on 2nd July 2013 and the fact that Ultra Mart found it impossible and impracticable to continue a working relationship with Ms. Nelson. 4. That the burden was on Ms. Nelson to prove that she was denied a fair hearing because Ms. Bonnett was investigator and adjudicator and was therefore biased towards her which rendered the decision to dismiss her unfair and Ms. Nelson had failed to discharge that burden. Reference was made to the case of J-Mayo-Deman v Lewisham College2 and the dicta of Lord Johnston to the effect that the fact that the same person conducted both the investigation and the disciplinary hearing in the absence of any suggestion that there was lack of good faith or bias does not amount to a breach of natural justice. 5. Ms. Nelson had failed to put forward any evidence to support her allegation that the hearing which had been conducted was a sham. 6. The suspension of Ms. Nelson from 2nd July 2013 until a decision was made in the matter on 26th July 2013 was fair and well within the legal right of Renwick & Company given section 142 of the Labour Act. 7. Ms. Nelson should be compensated for an additional six (6) days' vacation leave.
The issues for the Court's consideration are:
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(1) Whether the applicant has met the threshold for leave to apply for judicial review.
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(2) Whether there has been unreasonable delay in making the application.
In deciding an application for leave to file a claim for judicial review, I remind myself that I am not concerned with the merits of the decision which the Labour Tribunal made on 26 th July 2013, nor am I required to perform an in-depth analysis of the applicant's case. It is the legality, rather than the merits of the decision; the jurisdiction of the decision maker and the fairness of the decision making process that occupy the Court's attention at this time. The role of the court in judicial review is merely supervisory and therefore the question is not...
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