Sexual Harassment Bill could trespass on court's jurisdiction, cautions IJCHR

Sexual Harassment Bill could trespass on court's jurisdiction, cautions IJCHR

Senior staff reporter

Friday, November 27, 2020

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THE Independent Jamaica Council for Human Rights (IJCHR) has cautioned legislators to tread carefully in creating the offence of “sexual advances” under the Sexual Harassment Act, as this could constitute a trespass by the tribunal on the jurisdiction of the island's courts.

Addressing yesterday's meeting of the joint select committee, which is reviewing the 2019 Bill, attorney-at-law Donald Gittens outlined, on behalf of IJCHR, that the issue of trespass would, at the very least, be arguable.

“Where the proposed law claims jurisdiction over touching or physical contact as a form of sexual harassment, an issue might arise concerning conflict with the jurisdiction of the court concerning the question of separation of powers,” he explained.

The attorney pointed out that, in at least one decision, the courts have made claim to the jurisdiction of the act of harassment, noting the 2006 judgement in the case of Needham and Clarke, where the now Chief Justice Bryan Sykes refused an application for an injunction that was sought for harassment.

“In doing so he expressly recognised that there is a tort of harassment, and the application was refused only because it did not contain the elements that he thought the tort of harassment should demonstrate. He indicated that the applicants could refile or amend what they had filed, to fit the elements that he had identified that would make the courts have jurisdiction over that tort of harassment that he did not find existed in the common law,” he said.

Gittens argued that there are other examples of the court's guarding of its jurisdiction.

“Where any legislation appears to infringe or try to share that jurisdiction, there can be a complaint to the court against it,” he said.

Meanwhile, the IJCHR said it is in favour of the 12-month time limit for making complaints of sexual harassment to the tribunal, but that the statute of limitation should be extended, on a case by case basis, under certain circumstances.

Gittens argued that pinning the legislation down to an extended time limit may not be of much consequence, as the factors surrounding the case itself would determine whether 12 months is sufficient or if an extension should be granted.

“No matter what the time limit is, no matter how much it is increased, the factors that are peculiar to a sexual harassment episode and the reaction of the victim to it can always cause the time limit to be exceeded. So we believe a one-year bar or a quasi-judicial jurisdiction is appropriate,” he told the committee.

The attorney-at-law pointed to the 12-month time limit for complaints to the Labour Ministry, as set out in the Labour Relations and Industrial Disputes Act.

“We are in a better position than the [Labour Relations and Industrial Disputes] Act is now... There is no provision really, for an extension, and it causes issues, because one of the things that happen is that the employers will make an application for a copy of the letter that the worker used to initiate the complaint, to make sure that the worker was within time, and the ministry seems to have a policy of refusing that. They do not disclose it,” he told the committee.

Gittens said he was aware of at least one judicial review application that is now pending in the Supreme Court, seeking an order of mandamus against the responsible minister to disclose a letter that a worker submitted to initiate intervention from the Labour Ministry.

The IJCHR is also concerned that the tribunal may not have enough cases to justify its full-time existence, and that an ad-hoc approach should instead be considered, in which the panel would be convened when necessary, with members in the geographical area that is most appropriate and convenient.

Government senator and trade unionist Kavan Gayle said he strongly opposed the idea.

“A tribunal who makes its rules and is so designated based on the qualification of its members need not be ad hoc in nature, but given the authority that is required and that brings confidence to the process,” he insisted.

The IJCHR has also recommended that the definition of landlord, tenant, lessor, and lessee be explicitly legislated, as already these are the subject of significant debate in the justice system and should, therefore, be defined for the purposes of this new piece of legislation.

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