Industrial Court or High Court?

It's all about remedy.

When the Industrial Court deals with the dismissal of a worker, it looks at the circumstances surrounding the dismissal and has a wide discretion in the relief it may award. It can award damages, compensation, exemplary damages and even order re-employment or reinstatement, with or without damages [2]

The High Court at common law is mainly concerned with whether the contract of employment was terminated in accordance with its provisions. It is limited to awarding damages for breach of contract, which is usually limited to awarding damages in lieu of reasonable notice.

The Industrial Court is clearly the preferred option. However, to get there, you have to be "a worker."

But are you a worker?

From a trade union point of view, if you sell your labour, you are a worker. Whether you work on the factory floor or you are the CEO, you are selling your labour (granted, for a much higher price!). Whoever you are, get dismissed, and you have a problem paying the bills.

In its wisdom (or at the behest of the employing class), Parliament built a range of restrictions on who is legally a worker into the Industrial Relations Act (IRA).

The initial definition of a worker is fairly broad [3] but then excludes the following:

• someone employed in a teaching capacity by a university or other institution of higher learning (2(3)(c));

• a member of the staff and an employee of the Central Bank (2(3)(d);

• a person who is (i) is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business, or (ii) has an effective voice in the formulation of policy in any undertaking or business (2(3)(e);

• someone employed in any capacity of a domestic nature, including that of a chauffeur, gardener or handyman in or about a private dwelling house and paid by the householder (2(3)(f) (See the National Union of Domestic Employees struggle to delete this).

• an apprentice within the meaning of the Industrial Training Act (2(3)(g)

Registration Recognition and Certification Board

Problems can occur when a member's status as a worker is challenged and referred to the Registration Recognition and Certification Board (RRCB). This is a delaying tactic often used by employers' representatives, whether well-founded or not. The most frequent challenge is the one alleging that the worker is effectively a manager (see section 2(3)(e)). Once this is raised during conciliation in the Ministry of Labour, all conciliation immediately ceases, and the worker's status is referred to the RRCB.

Because conciliation at the Ministry has broken down, the matter is referred to the Industrial Court. However, a "trade dispute" is defined as "any dispute between an employer and workers of that employer or a trade union on behalf of such workers ..." [4] 

This brings us back to the definition of "worker."  Until the RRCB determines whether the worker is a worker, the trade dispute is not properly before the Industrial Court. It just keeps coming up for case management until the RRCB decides the matter one way or the other.

If the RRCB decides for the union, the matter will proceed to the Industrial Court as usual. If the RRCB rules against the Union, the Industrial Court option is shut down, leaving only the High Court. Then it's problem time!

Time limits

The potential complication is the four-year statute of limitations on filing matters in the High Court (although this has been extended due to COVID-19). If the RRCB takes a long time to determine the issue and rules against the union, it may be too late to file in the High Court, thus denying the worker any route to process their matter.

So, how can we get around this dilemma and avoid getting caught up in the challenge of not having the same matter in two jurisdictions?

The strategy is to explore filing a matter in the High Court once the "worker status" issue is raised. When it comes up for case management in the High Court, ask for the matter to be stayed pending the outcome of the RRCB determination. Of course, this comes at a cost, as processing issues to the High Court requires an attorney who would typically charge for this work. But it keeps the options open. 

In an interesting Court of Appeal judgment of Nishan Mohammed and Surfside Pool and Leisure (2018) Limited [5], this very issue was addressed. It was decided that "... the claim is stayed pending the determination of the issue of whether the Claimant is a worker under the Industrial Relations Act by the Registration, Recognition and Certification Board."

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[1] Section 10(5) of the IRA

[2] Section 10(4) of the IRA

[3] Section 2(1) of the IRA

[4] Section 2(1) of the IRA

[5] CV 2023-01948 delivered on 20th March 2024