10.07.19

Expats Want Justicia Too!

Gavin Goffe
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Expats Want Justicia Too!

The Ministry of Tourism has done a wonderful job in attracting European and Latin American investment to our island. We have nonstop flights from Moscow to MoBay and should soon have likewise from Lima. When those investors get here, however, the Ministry’s treatment of some of the expats seeking to obtain or renew work permits has been nothing short of illegal.

Although the Ministry of Tourism doesn’t grant or renew work permits, by convention, their recommendation is necessary for the Ministry of Labour and Social Security to do so. Since 2017, the Ministry of Tourism has been withholding their recommendation in respect of expat managers about whom they have received complaints. It is believed that these complaints emanate from the trade union, as a means of retribution on behalf of their members, but the Ministry of Tourism has been mum on the source. Minister Bartlett’s staff will disclose that they have received reports of managers shouting at or being disrespectful to local workers and on that basis, they cannot recommend the renewal of their work permit. They don’t give the manager the opportunity to deny the allegations, or defend him or herself in any way. Thus, the due process requirements that are guaranteed to all employees in Jamaica, appear to only apply to Jamaican citizens.

Natural justice doesn’t need a passport or a visa. All employees working in Jamaica, irrespective of their citizenship or place of origin, can access it equally. In response to an Access to Information request made of the Ministry of Labour and Social Security in February 2018, they confirmed that none of the expats whose work permits were not renewed in 2017 were notified of the reason for refusal or given an opportunity to comment in relation to any concerns prior to the refusal. They also confirmed that none was given the opportunity to appeal that decision. Of all the Ministries in Jamaica, no one expected that the concept of due process for workers would escape the Ministry of Labour and Social Security. This isn’t the first time that the Ministry is facing this issue.

In 1988, when J.A.G. Smith was Minister of Labour and Employment, he canceled the work permits of 15 Filipino nationals who had been employed to East Ocean Textiles Limited. This was done at the request of the employer who had terminated their contracts in circumstances which were being challenged in Court. The expats, represented by Dennis Goffe and Donovan Jackson, attorneys-at-law, sued the Minister, and were successful in having the cancellations quashed. In handing down the decision of the Full Court, Justice Bingham (as he then was) said, “It is almost inconceivable to believe that the Honourable Minister had due regard to the wishes of the employers while at the same time a total disregard for the interest of the workers. Based upon the authorities cited and the clear wording of Section 7 of the relevant Act previously referred to, we were of the unanimous opinion that the Honourable Minister having heard from the representatives of the company was in duty bound to grant a hearing to the legal representatives of the dismissed workers before seeking to invoke his statutory powers to cancel their work permit. Further, we were also of the unanimous view that in so far as the Honourable Minister came to his decision without affording the applicants a hearing, this amounted to a procedural impropriety giving rise to the reliefs sought.” Thirty years later, we have history about to repeat like dunce pickney.

It doesn’t matter that the Ministry of Tourism is purportedly seeking to protect the dignity of local workers. The whole point of natural justice is that you need to hear both sides of a story before you arrive at a decision. Foreign employees have rights too and if the Minister of Tourism won’t protect them, the Minister of Labour and Social Security surely should.

Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is a member of the firm's Litigation Department (Labour and Employment Law Practice Group). He may be contacted at gavin.goffe@mfg.com.jm or through the firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.