IDT challenge dismissed after ruling it had no jurisdiction in CXC dispute

‘... the Council enjoys absolute immunity in Jamaica from “every form of legal process”, and had not waived its immunity.’

THE INDUSTRIAL Disputes Tribunal has lost its appeal against a Judicial Review Court’s ruling that it did not have the jurisdiction to decide a dispute between the Caribbean Examinations Council (CXC) and one of its employees.

Last week, the Court of Appeal, in its written judgment, said the council enjoyed absolute immunity in Jamaica from every legal process.

The case involved Gerard Phillip, who was appointed on contract to the post of assistant registrar (syllabus development) Western Zone Office from November 2008 to October 2011. The contract was renewed for another three years to end in October 2014.

Phillip’ s contract was terminated, however, on May 8, 2012, and the matter was referred to the Tribunal by the minister of labour under the Labour Relations and Industrial Disputes Act.

The hearing began on March 11, 2013, but the lawyers representing the council took a preliminary jurisdictional point that the council was immune from suits and legal processes. They argued then that the immunity was due to the Agreement Establishing the Caribbean Examinations Council 1972 (the Agreement) between the Government and the council. The tribunal requested proof of the immunity, but it was not forthcoming. The attorneys failed to attend any further hearing and the Tribunal proceeded to hear the matter ex parte.

ORDERED REINSTATED

On May 17, 2013, the Tribunal ruled that Phillip should be reinstated effective August 8, 2012, without any loss of income and entitlement. If the council failed to reinstate him by May 27, 2013, then it should pay him for 115 weeks without any loss of income or entitlement, the Tribunal ruled.

The council took the matter to the Judicial Review Court, seeking a declaration that “it is not subject to the jurisdiction” of the Tribunal. It also asked the court to find that the award was unjustified and quash the award.

Justice Marcia Dunbar-Green heard the motion, and on September 23, 2013, granted the declaration and quashed the award.

The Tribunal appealed and filed several grounds of appeal, contending that the judge erred in her decision.

The Court of Appeal, comprising Justice Frank Williams, Justice Nicole Simmons, and Justice Vivienne Harris, after hearing legal arguments, dismissed the appeal and ruled that Dunbar-Green had not erred in her decision.

“Having regard to the authorities and the circumstances of this appeal, we are of the view that the learned judge was correct in holding that the Tribunal erred in assuming jurisdiction in this matter involving the Council, in circumstances in which the Council enjoys absolute immunity in Jamaica from “every form of legal process”, and had not waived its immunity. In passing, it is observed that this court can discern nothing incongruous with the Council being clothed with the power to initiate legal proceedings yet being granted absolute immunity from suit. However, we hasten to say that we did not have the benefit of authorities and arguments to convince us that those circumstances cannot co-exist,” the court said.

Attorney-at-law Kamu Ruddock, who was instructed by the Director of State Proceedings, represented the Tribunal and presented written submissions prepared by another counsel which stated that the council enjoyed general immunity from the courts under Section 4 of the Diplomatic Immunities and Privileges (Caribbean Examinations Council) Order 1988. However, she cited an authority and said that based on the dictum in that authority, such immunity could only be recognised in respect of public law authorities.

The council was represented by attorneys-at-law Emile Leiba and Johnathan Morgan, instructed by the law firm DunnCox, who argued that the judge’s ruling should be upheld. Leiba argued that the purpose of the diplomatic immunity was to ensure that the representatives of foreign nations or international organisations can represent the interests of their nations or organisations without fear of being subjected to sanction or the jurisdiction of the host nation.