24.05.17

Resolving the Riddle of Redundancy Consultations

Jahmar Clarke
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Resolving the Riddle of Redundancy Consultations

Riddle me this, riddle me that, make me redundant without prior consultation, you must hire me back! Or so everybody thought. The Industrial Disputes Tribunal (IDT) ruled in Sappleton v Cemex Jamaica Ltd that Cemex did not need to consult Mr. Sappleton before making him redundant. The IDT found that Mr. Sappleton’s dismissal was justifiable due to the safety and security concerns. However, in the well-known Privy Council decision of Jamaica Flour Mills v National Workers Union (2003) 3 workers were dismissed by reasons of redundancy without consultation. The IDT found in that case (a finding not disturbed by the Privy Council) that it was ‘unfair, unreasonable and unconscionable for the Company to effect the dismissals in the way they did’. Hmmm? At first blush they seem to be two divergent decisions on the same issue. In a most unusual fashion, the worker (yes, the worker!) applied to the Court to have the decision of the IDT quashed. In the words of a popular Jamaican singer, strange things were happening! Stra-a-ange! With Sherlock Holmes type guile, an investigation was launched into the matter.

The first discovery was that most employers, particularly those in a non-unionized environment, do not know that you are expected to consult workers where there may be a redundancy. Jamaica is a country that boasts strong labour laws. The laws were enacted to protect the rights of the workers and balance the interest of the employers. There is a general requirement for employers and employees to engage in communication and consultation in relation to matters and problems affecting management and workers. This requirement extends to cases of redundancy.

Still donning the Holmes hat it became clear that consultation would normally take place in a unionized environment since the employers cannot even blow their noses without the union sheltering the workers from the flu. In non-unionized organizations this is not usually the case. At the Supreme Court, Counsel for Mr. Sappleton was quite the pugilist when she challenged the IDT’s decision and advanced submissions that the Jamaica Flour Mills case in effect, found that there cannot be redundancy without consultation and that the IDT failed to follow its own decision. However, Cemex’s lawyer manoeuvred his way through every blow when he argued that each case has to be decided on its own facts and the circumstances of this case could not have allowed for consultation. Mr. Sappleton even testified at the IDT that had he known about the redundancy exercise from before, he would not have worked as hard.

Holmes you've cracked the case !

In resolving the riddle of redundancy consultations it was concluded that the Jamaica Flour Mills case was just one example of a redundancy case with no prior consultation and did not set a precedent for the IDT to follow in every case. Each case turns on its own facts. It is “elementary my dear Watson” that employers are hesitant to consult where such consultation may endanger the lives of other workers and the operations of the business. Though the Labour Relations Code recognises the need for consultation, it also provides for the IDT to consider whether or not the redundancy in question is consistent with operational efficiency. Where consultation would be inconsistent with operational efficiency, the employer may forego that duty imposed by the Labour Relations Code. Who would want their doctor to know moments before surgery that the hospital intends to dismiss him in 4 weeks? The possibility that certain workers may slack off, divulge confidential information or ‘go slow’ is too high a risk for an employer to take.

Mr. Sappleton’s lawyer argued that the Tribunal’s decision was wrong in law and applied for an administrative order to quash the decision of the Industrial Disputes Tribunal. Lorna Shelly Williams J on Judicial Review found that the IDT’s decision was in accordance with labour laws and dismissed the Application for Judicial Review. This case marks the first decision in almost 15 years since the decision in Jamaica Flour Mills that the IDT has ruled, in effect, that consultation is not mandatory. Holmes would be proud.

Jahmar Clarke is an Associate at Myers, Fletcher and Gordon in the Litigation Department. He may be contacted at jahmar.clarke@mfg.com.jm.