The question of what options are available to companies whose employees are blocked from entering their workplace without notice by an overarching authority remains unsettled, despite a recent Appeal Court decision.

The case involved Marlon Gordon, who was employed as a container marshall at Kingston Wharves Limited (KWL) in 1995. He was dismissed in 2011 after Port Authority of Jamaica (PAJ), the statutory body responsible for security at the port, withdrew his port identification card or pass.

KWL said that it had no option but to terminate Gordon’s employment as he had no pass to enter the port, and the company had no alternative space for transfer.

The Appeal Court, comprising Justices Phillips, Straw and Fraser, recently agreed to dismiss the charges brought by KWL by indicating their agreement with the positions taken by Justice Georgina Fraser in a 2017 Supreme Court judgement. The court said that having reviewed all of the material submitted, it found “no basis to disturb the decision of the learned judge in rejecting the application for judicial review, and in upholding the award of the IDT (Industrial Disputes Tribunal), as being valid, and not being unreasonable, illegal, or void”.

Justice Phillips ordered that the appeal against the decision of Justice Fraser’s judgement in favour of the IDT, delivered in November 2017, is dismissed with costs to the IDT and the Union of Clerical, Administrative and Supervisory Employees (UCASE), to be taxed if not agreed.

The Jamaica Observer was told that passes to the port were initially available from KWL, but in 2011 the PAJ introduced new security measures which required that the employees of its clients on the port be issued “port identification cards”, without which they would not be able to enter the port.

These measures appeared to have been triggered by the September 2001 terrorist attacks in the United States, which became known worldwide as 9-11.

In response, a comprehensive series of security procedures, called the International Ship and Port Facility Security Code (ISPS Code) were introduced. The code was issued as part of the International Convention for the Safety of Life at Sea (the Solas Convention), to which Jamaica is a party. It was the PAJ’s responsibility to ensure that all facilities which fall under the ISPS Code in Jamaica comply with the Solas Convention.

The PAJ ordered KWL to withdraw Gordon’s card on October 31, 2011. Two days later he was dismissed by his employer because he was unable to enter the port and KWL had no other venue to place him.

However, UCASE, which had won bargaining rights for supervisory level workers at the company two years before, took up the matter. This developed into a labour dispute, which the conciliatory efforts of the Ministry of Labour and Social Security failed to resolve. As such it was referred to the IDT for arbitration in November 2012.

The IDT held 16 sittings on the issue, hearing evidence and submissions on behalf of KWL on the one hand, represented Senator Ransford Braham, and the IDT represented by Althea Jarrett, and UCASE (an interested party) represented by attorneys Lord Anthony Gifford and Emily Crooks-Shields.

On March 20, 2015, the IDT handed down an award which stated that KWL should: “(a) reinstate [Gordon] in his employment on or before April 20, 2015 with payment of 18 months’ salary at the current rate for the position he held at the time the contract of employment was terminated; or (b) failure to act in accordance with (a) pay him compensation with a sum being the equivalent of three years’ salary at the current rate for the position he held at the time the contract of employment was terminated, as relief.”

However, KWL was dissatisfied with the ruling and took the matter to the Supreme Court, noting that as a publicly listed company registered under the Companies Act it operates a multi-purpose terminal/port facility in the Kingston Harbour or Port, which business includes the handling of cargo and related matters.

KWL noted that all its operations are carried out on the port, which is its sole place of business and which is governed by the PAJ, a statutory corporation established under the Port Authority Act [1972] and which derives its powers by virtue of the said Act, and additionally from The Port Authority (Port Management and Security) By-laws 2009.

In 2005, the PAJ introduced a new set security measures at the port facilities. Among the measures implemented was the requirement that the employees of its clients, including KWL, be issued with ‘port identification cards’, and without this card employees would not be able to access the port.

Gordon, who commenced his job as a container marshall and was later promoted to the position of stevedore coordinator, was among the people whose cards were required to be withdrawn in November 2011. KWL was asked to retrieve Gordon’s card and return it to him, which the port company did.

The court said that there was no indication, on the evidence before it, why the dismissal occurred, but on November 2, 2011 KWL purported to terminate Gordon’s employment with immediate effect, while indicating a link to the PAJ’s action of revoking his pass.

The IDT’s attorney noted that Gordon had fully complied with the new security measures when they were introduced, and his pass had even been renewed when it had expired.

“Yet, on a day when he turned up for work, he was told that his pass had been summarily revoked, and he was refused entry to the port, with no explanation offered,” Jarrett said.

UCASE General Secretary John Levy told the Sunday Observer that up to now the PAJ has not disclosed why Gordon’s pass was recalled. The union’s attorneys criticised the manner in which the termination was handled, and challenged the loss of employment as unjustifiable.

Senator Braham argued that while the IDT’s award contemplated that KWL denied Gordon natural justice before dismissing him, the “error” by the IDT was further compounded by its seeming “misunderstanding and or misapplication” of sections 8 and 23 of the regulations.

He said that whereas the regulations contemplate that an employee be notified in writing of a proposed revocation, along with reasons, this obligation, in these circumstances, rested with the PAJ.

“The claimant (KWL) should not therefore be blamed for any such shortcomings,” he insisted.

In terms of the compensation award, the court said that it was apparent that the amount awarded to an employee by the IDT is a matter which is entirely within its discretion.

“This is an acknowledgement that its members possess sufficient knowledge and expertise to deal with such matters. In the absence of any clear judicial pronouncement that the IDT must provide reasons for a particular compensation award, I am at this time content to hold that the award made to Mr Gordon is by no means irrational,” Justice Phillips summed up.