Should the IDT Award Costs Against a Losing Party?
The Industrial Disputes Tribunal should have the power to award costs in certain prescribed situations. Indeed, there is an argument that the IDT at present is empowered to award costs. In the same way a successful party is entitled to costs against an unsuccessful party in civil litigation, so too should the IDT award costs, even if only under certain circumstances.
What is costs, you may ask? Costs is defined as expenses incurred in litigation. At present, each party bears its own costs of the hearings at the IDT, meaning both the worker and the employer will have to bear their own representatives’ fees. In contrast, in court proceedings the general rule is costs are awarded to the successful party.
There are advantages to the IDT being able to award costs. The Ministry of Labour & Social Security receive hundreds of complaints per year from workers who complain of an industrial dispute as between the worker and his or her employer. Employers, particularly employers with a large workforce may receive a significant number of complaints of an industrial dispute for which the employer will have to incur expenses to defend. If the IDT had the power to award costs, then the employer will feel more justified in having the matter advance to the IDT if the IDT can award costs in favour of a successful employer. The converse is also true, costs may also be awarded in favour of a worker successful in his claim before the IDT. One thing is for sure, the consequence of costs will filter frivolous claims from advancing to the IDT and help reduce the backlog of matters at the Ministry of Labour & Social Security. Indeed, many employers prefer to settle frivolous claims even in circumstances where the employer has followed every letter of the Labour Relations Code. Some conciliation officers at the Ministry have even suggested to employers that they settle now rather than pay lawyers to defend the claim because they will not recover those fees even if they win at the IDT. Surely, such a circumstance is the antithesis of what is fair and just.
The Trade Unionists and Industrial Relations Consultants will tell you that the possibility of stifling legitimate claims with the fear of costs being awarded against a worker is far too great a risk and therefore the status quo should remain. Also, the imbalance in resources between the worker and his employer is another merit to the opposition of any change to the law to allow the IDT to award costs against an unsuccessful party.
There is one argument that the IDT as it is now is empowered to award costs. The Jamaican Court of Appeal case of Branch Developments Limited v IDT & Marlon McLeod raised some doubt on the principle always understood that statutory Tribunals only have powers as set out in the statute. The Court of Appeal ruled that the IDT is empowered, by virtue of the Labour Relations & Industrial Disputes Act, to fashion its own remedies including those not stated in the Act. The IDT was described as having a free hand in determining its procedure. One may argue that that includes the power to award costs.
The Employment Tribunal in the United Kingdom has a similar power to our Tribunal in Jamaica to develop its own rules of Procedure and has done so with an entire part of the Rules dealing with costs. The general rule is that the tribunal may only make a costs order where it considers that a party or that party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way in which the proceedings (or part) have been conducted; or any claim or response that had no reasonable prospect of success. In the UK the costs order cannot exceed £20,000.00 as a general rule.
In Trinidad & Tobago the Industrial Court is empowered to make a costs order but will only do so for exceptional reasons where the Court considers it proper. to order otherwise. In T & T, employment matters are handled by a superior court of record akin to the Jamaican Supreme Court and not an inferior Tribunal as in Jamaica over which the Jamaican Supreme Court has supervisory powers.
Employers and the Jamaica Employers Federation have for many years lobbied for the law to be amended to include the power for costs to be awarded by the IDT. Former chairman of the Tribunal, Mr. Norman Wright, QC is on record as calling on the Minister of Labour & Social Security to empower the IDT to ward costs in certain prescribed circumstances.
Costs may not be a feature of the IDT as it is presently constituted but the Tribunal has developed a long way. It now allows non-unionised workers access. There is now a well-established and long needed western division of the IDT in St. James. The case for costs at the IDT may not be that far away.
Jahmar Clarke is an attorney at Myers, Fletcher and Gordon and a member of the firm's Litigation Department. He may be contacted at email@example.com or through the firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.