Octave v Labour Tribunal and Sagicor Life Incorporated

• Jurisdiction: St Lucia
• Judge: Cenac-Phulgence, J,Justice Kimberly Cenac-Phulgence,High Court Judge
• Judgment Date: 16 June 2017
• Neutral Citation: LC 2017 HC 30
• Docket Number: SLUHCV2017/0102
• Court: High Court (Saint Lucia)
• Date: 16 June 2017

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(Civil)

Before:

The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge

SLUHCV2017/0102

Between:

Chesterfield Octave

Applicant

and

The Labour Tribunal

Respondent

Sagicor Life Incorporated

Interested Party

Appearances:

Mr. Horace Fraser for the Applicant

Mr. Seryozha Cenac for the Respondent

Mr. Deale Lee for the Interested Party

Applicant present

Civil Practice and Procedure - Application seeking leave to file a claim foe judicial review — Whether the Tribunal failed to deal adequately or at all with all matters which he raised in his complaint before them and in his response to the Interested Party and therefore fell into error — Whether the applicant had met the threshold for leave to apply for judicial review.

DECISION

Cenac-Phulgence, J

1 The claimant, Mr. Chesterfield Octave (“Mr. Octave”) was employed by Sagicor Life Inc. (“Sagicor”) from 1 ^st July 2012 until 31 ^st January 2014. Mr. Octave claims that on 31 ^st January 2014 he was summoned to a meeting with the General Manager and the Executive Vice President of Human Resources where he was accused of breach of trust. He was then handed a document headed ‘receipt release and discharge’ and was ordered to sign it and he would receive three months' salary and if he did not, he would be paid one month's salary as termination benefits. Mr. Octave claims that he signed the form because he felt he had no choice when he considered that the possibility existed that he would default on his loan and would not be able to care for his children. He claims that the signing of the form was not voluntary.

2 Mr. Octave claims he was dismissed by Sagicor and that he did not resign. He caused a complaint to be lodged with the Labour Tribunal (“the Tribunal”) on or about 3 ^rd March 2014. The matter came before the Tribunal for hearing on 22 ^nd October 2015 and at that hearing counsel for Sagicor raised a preliminary issue in relation to the document Mr. Octave had signed alleging that he had signed the document voluntarily and therefore resigned from his job. Mr. Octave's case before the Tribunal was that he had signed the document under ‘pressure’ and that his signing was not voluntary. By this time the parties had filed witness statements. The Tribunal invited the parties to file submissions on the preliminary issue and reserved their decision.

3 The Tribunal delivered its decision on 17 ^th October 2015, almost one year after the first hearing of the matter. It is this decision that the applicant seeks leave to file a claim for judicial review against. Mr. Octave's primary ground for this application is that the Tribunal failed to deal adequately, or at all, with all the matters which he raised in his complaint before them and in his response to Sagicor and therefore fell into error.

4 The applicant seeks to have the leave of the Court to file a claim for the following relief:

• (a) A declaration that the Labour Tribunal misdirected itself and therefore erred in law when it found as a matter of law that coercion is a factual matter but failed to hear all the facts attendant to the determination of the matter.

• (b) A declaration that the Labour Tribunal misdirected itself in law when it (i) applied the test of “coercion” and not “pressure” as was the case of the applicant and (ii) failed to apply the test in according [sic] with the Civil Code of Saint Lucia and the French authorities on the matter.

• (c) A declaration that the Labour Tribunal erred in law by failing to examine and apply the law in relation to the applicant's challenge to the agreement on the grounds that it was contrary to Section 4 of the Labour Act and the principles of equity (independent legal advice).

• (d) An order of certiorari to quash the decision of the Labour Tribunal.

• (e) An order directing that the matter be remitted to the Labour Tribunal for a hearing.

• (f) Costs.

5 The Tribunal's findings in its decision were as follows:

• “1. The complainant has signed an absolute release from the respondent. Also, under the Civil Code, Article 917 a gratuitous promise has contractual force. The document, therefore in this sense, is an agreement.

• 2. The law is clear that if there is consideration offered and accepted this amounts to an accord and satisfaction.

• 3. The issue of coercion is a factual issue and it is the only one before the Tribunal. The Complainant's [sic] behavior does not amount to coercion in the legal sense therefore. The Document stands and is binding on the Complainant.

• 4. Section 4 of the Labour Act seeks to prevent “contracting out”. In this case the Complainant is entitled to a fair hearing before the Tribunal. He is before the Tribunal now and had he chosen to be dismissed he could still be before the Tribunal.

• 5. Therefore, the Tribunal is of the view that the Complainant chose to sign The Document, even in the face of being given an option. He was not coerced into signing The Document in any way. The Document takes effect upon signing. The Complainant therefore has failed to establish his case.”

6 The issues for the Court's consideration are:

• (1) Whether the applicant has met the threshold for leave to apply for judicial review.

• (2) Whether there has been unreasonable delay in making the application.

7 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 in question 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.

Whether the applicant has met the threshold for leave to apply for judicial review

8 It is well-known that the requirement for leave to file a claim for judicial review is designed to filter out claims which are groundless or hopeless at an early stage.

9 Rule 56.2(1) of the Civil Procedure Rules 2000 (“CPR”) requires that an application for judicial review be made by a person who has a sufficient interest in the subject matter of the application. There is no doubt in this case that Mr. Octave has a sufficient interest in the subject matter of the application. The decision of the Tribunal concerns and affects him and there can be no clearer indication of sufficient interest than this.

10 The applicant must show that there he has an arguable case with a realistic prospect of success. I am guided by the dicta in Sharma v Browne-Antoine1:

“The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy … But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R (N) v Mental Health Review Tribunal (Northern Region)[2006] QB 468, para 62, in a passage applicable, mutatis mutandis, to arguability:

“the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to “justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen” (My emphasis.)

11 I will now address the grounds of the application.

Ground 1

The Labour Tribunal applied the wrong test; the test was ‘pressure’ not ‘coercion’.

12 Counsel for Mr. Octave, Mr. Fraser argued that the Tribunal failed to heed the warning of the Privy Council in Kenneth Poliniere et al v Lucy Felicien2 that in

interpreting the Civil Code3 guidance must be sought from the Code Napoleon. Article 928 of the Civil Code provides that violence or fear is a cause that can nullify an agreement. He referred to Article 1112 of the Code Civil (Canada) and the fact that ‘violence’ is seen as ‘undue influence’ rather than duress. The threat must be of an act which causes the other party to fear a considerable and present harm to his person or fortune. Mr. Fraser referred to Principles of French Law4 at pages 313–314 in support of his arguments.

13 In oral submissions, Mr. Fraser told the Court that although the application before the Tribunal referred to ‘coercion’, he had amended that to ‘pressure’ before the Tribunal. However, this is nowhere stated in the application for leave. Counsel cannot simply state this in oral submissions as this forms a major part of his objection to the Tribunal's findings. Mr. Fraser referred to Article 928 of the Civil Code which provides that ‘violence or fear is a cause of nullity, whether practiced or produced by the party for whose benefit the contract is made or by any other person’. Article 929 states that ‘the fear whether produced by violence or otherwise must be a reasonable and present fear of serious injury. The age, sex, character and condition of the party are to be taken into consideration’.

14 The text referred to by Mr. Fraser refers to violence being thought of as undue pressure rather than duress. But the case before...