Sacked UWI employee gets go-ahead to challenge dismissal

An employee of The University of the West Indies (UWI), Mona, who was fired from his job six years ago, has been given the go-ahead by the Supreme Court to challenge the labour minister’s refusal to send his case to the Industrial Disputes Tribunal.

Donovan Brown, who had been employed to The UWI since 1987, was fired from his job as acting purchasing manager in February 2017.

On March 3, last year, the labour minister ruled that he would not refer the matter to the Industrial Disputes Tribunal (IDT), but last month, Justice Andrea Pettigrew-Collins granted leave for Brown to apply to the Judicial Review Court for an order to quash that decision.

The first hearing is set for March 30 at the Supreme Court.

Brown was dismissed after questions arose regarding his association with a company which was a supplier of goods to the university. It was alleged that there was a conflict of interest as a result of his affiliation with the company and that there was misconduct on his part.

Brown claimed that he had disclosed his affiliation and had received approval from the university to carry on transactions with the company.

He said that prior to his dismissal, he had never had disciplinary proceedings brought against him.

Brown alleged his dismissal was unjust and in breach of the Labour Relations and Industrial Disputes Act and the Labour Relations Code.

An appeal against his dismissal to the UWI’s vice chancellor in March 2017 was dismissed and communicated in a letter on November 30, 2017.

Brown sought the intervention of the Ministry of Labour on November 6, 2017. Several conciliatory meetings were held between Brown and The UWI, but the matter was not resolved.

He requested in June 2020 that the matter be referred to the IDT.

The ministry responded that it would not be referred to the IDT and instead recommended that he invoke the jurisdiction of the visitor of the university.

A petition to the visitor was filed in April 2021, but in September 2021, the visitor said he did not have the jurisdiction to hear Brown’s petition.

The ministry then wrote to Brown in March 2022, reaffirming its decision not to refer the matter to the IDT.

Brown filed an application in the Supreme Court on April 11, 2022 seeking leave to go to the Judicial Review Court to get orders to quash the decisions of the minister and the visitor.

Maurice Manning, KC, and attorney-at-law Allyandra Thompson, instructed by Nunes, Scholefield, DeLeon and Company, who represented the university, had filed a preliminary objection and argued that the university was not a necessary party. They emphasised that the decision being challenged was the refusal of the minister to refer the dispute to the IDT, which was not a decision that the university could make.

The judge upheld submissions by the lawyers for the university that the applicant Brown did not have an arguable ground for judicial review with a realistic prospect of success, so as to permit the court to grant him leave to apply for judicial review against the decision of the Visitor.

Legal costs were not awarded to the university as the judge ruled that it could not be said that “the applicant acted so unreasonably” in bringing the application against the university.

The judge pointed out that the rationale for not generally making a cost order against an unsuccessful applicant is that private citizens should not be stymied in pursuing a challenge to decisions of a public authority and organs of the State which adversely affect them.

“If a potential applicant for leave to seek judicial review apprehends that he might be faced with sometimes unaffordable bills, he might be hesitant to act, even in instances where much is at stake,” the judge said.

Brown, who was represented by attorney-at-law Phillip Bernard, instructed by Bernard and Company, contended that the minister’s failure and/or refusal to refer his dispute to the IDT was illegal, irrational and unreasonable.

Attorney-at-law Kristen Fletcher, instructed by the director of state proceedings, represented the minister.

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