Re Pink Beach Ltd 1993 Civil Jurisdiction 145

• Jurisdiction: Bermuda
• Judgment Date: 27 April 1993
• Date: 27 April 1993
• Docket Number: Civil Jurisdiction 1993 : No. 145
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Astwood, CJ

Civil Jurisdiction 1993 : No. 145

Re Pink Beach Limited

Mr Alan Dunch for the Applicant

Mr Julian Hall for the Bermuda Industrial Union

Mr Philip Holder for the Minister and the Board

Merchandise Transport Ltd v British Transport CommissionELR [1962] 2 QB 192

Administration of Justice (Prerogative Writs) Act 1978

Labour Relations Act 1975

Labour dispute — Judicial review — Reference to Essential Industries Disputes Resolution Board — Hotel claimed order for certiorari to quash Minister's decision to refer case to Board and prohibition to prevent Board from hearing case — Issue estoppel — Whether Board's previous decision that collective bargaining agreement terminated on 24 February 1991 prevented it from hearing this dispute — Union complained that hotel not complying with terms of collective bargaining agreement — It was up to the Board to decide whether there was a collective bargaining agreement in force on the facts — Estoppel can apply to decisions of industrial tribunals

JUDGMENT

By a letter dated the 24th November, 1992. the B.I.U. (‘the Union’), through its Union Organizer, informed the Labour Relations Officer, an officer in the Ministry of Labour and Home Affairs (‘the Ministry’) that a dispute existed between the Union and the Pink Beach Cottage Colony (‘the Hotel’) concerning a worker at the Hotel. This letter was drafted as follows:

‘Re: Dispute—Pink Beach Cottage Colony vs B.I.U. Dismissal of Bro. Perry Goater

Please be informed that at approximately 2:50 p.m. on Friday, 20th November, 1992, the General Manager of Pink Beach Club, Mr B.A. Marquardt, again told me that he has fired Mr. Perry Goater, a Bar Waiter, and there is nothing to discuss. He told me that this is not a case for a grievance and if I wished, I could take the matter up with the Labour Department.

I calmly told the manager that we recognize his right to dismiss an employee for just cause. However, management must recognize the employee's right to be heard through the Grievance Procedure. Mr Marquardt replied “we have orders down here not to meet”. I enquired where did the order come from ? He told me from higher up.

Therefore, because the Pink Beach Club refuses to comply with the Grievance Procedure, Article 41 of the collective agreement, which was signed by Mr. W. Toppy Cowen in his capacity as “President” of the “Hotel Employers of Bermuda”. I hereby request your kind intervention in this dispute. We hope that you will be able to persuade management to reinstate Bro. Perry Goater. with or without a modified form of discipline.

We anticipate your kind and immediate co-operation.’.

By letter dated the 15th February, 1993, the Labour Relations Officer informed the Hotel of the action that the Minister of Labour and Home Affairs (‘the Minister’) had taken and requested the Hotel to nominate a person to be considered for appointment by the Minister as an assessor.

The letter of the 15th February, 1993, seems to me to be clear in its terms and it states:

‘Re Hearina into Dispute Between Pink Beach Cottaue Colony and The Bermuda Industrial Union

The Minister for Labour & Home Affairs under the powers vested in him under the Essential Industries Disputes Resolution Board has referred the above named dispute for settlement.

Accordingly, he has appointed Prof. Ron Haughton to serve as a single Arbitrator to conduct the hearings under the provisions of sec. 5D(1)(a) of the Act. He will be assisted by two assessors appointed by the Minister.

The Minister therefore requires you to nominate a person for his consideration as an assessor. The Terms of Reference are enclosed.

Prof. Haughton has indicated his intention to commence hearings on 15th March, 1993 at the Cathedral Church Hall, Church Street, Hamilton at 9:30 a.m. He hopes to complete the hearings within 5 – 8 days. We would appreciate the name of your nominee by no later than 5th March, 1993.

Looking forward as always for your co-operation.’.

No explanation was offered to this court as to the reason why it took three months for the Minister to make the reference to the Board but I would infer that in the elapsed period he was considering the report. It appears to me that...