The Labour Arbitration Tribunal FAQs

Confidentiality and Data Protection

Information provided to the Tribunal, including personal information, except as it relates to any complaint, reply, response or evidence ­led with the Tribunal, may be subject to publication or release to other parties or to disclosure in accordance with the access to information regime required by section 23(2) of the Virgin Islands Constitution Order 2007.

While the Virgin Islands has no equivalent to the UK’s Freedom of Information Act 2000 (FOIA), Data Protection Act 1998 (DPA) and Environmental Information Regulations 2004, the constitutional guaranteed right of access to information will be protected by the Labour Arbitration Tribunal wherever appropriate. If you want any information to be treated as confi­dential, including personal data that you provide to the Tribunal outside of a case before the Tribunal, please explain to the Tribunal why you regard the information you have provided as confidential. An automatic confi­dentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Tribunal.

Do I have to pay a fee to make a complaint?

Appearing before the Tribunal is free. There are no fees to make a complaint.

How to make a complaint to the Labour Arbitration Tribunal?

If you have an employment problem you should ­first follow your internal grievance procedures. If that internal grievance procedure does not resolve the problem then you should ­file a complaint with the Labour Commissioner within six (6) months when the problem arose. To make your complaint you can follow the steps outlined on the Department of Labour and Workforce Development’s page at https://bvi.gov.vg/services/dispute-claim.

If within 30 days (approx. 1 month) the Labour Commissioner is unable to resolve the complaint by mediation or conciliation, the matter must be transmitted to the Minister for settlement. If within 21 days (3 weeks) after the Minister receives the complaint from the Labour Commissioner and is also unable to resolve the dispute the matter must be referred to the Tribunal for settlement. The Tribunal is the ­final step in the dispute resolution process, except it is possible to appeal to the High Court only on points of law.

There are only two (2) situations where you can make an application directly to the Tribunal without going through the normal complaint process, namely:

  1. If you are a non-established worker within the public service and you have a complaint against the Crown as your employer for which there is a breach that would result in criminal proceedings, but because no criminal proceedings would be commenced against the Crown, an application to the Tribunal can be ­led; or
  2. If you have been dealing with the Department of Labour and Workforce Development and you are dissatis­ed with any exercise of any power and have written to the Labour Commissioner, but you are aggrieved by the Labour Commissioner’s decision, then you can apply directly to the Tribunal to review the Labour Commissioner’s decision.

Once the complaint is delivered to the Tribunal, the Secretary to the Tribunal will issue a Notice to all the parties setting down a date for the Case Management Hearing and outlining the timeline that both parties will be required to follow leading up to the Case Management Hearing.

What does the Labour Arbitration Tribunal do?

The Labour Arbitration Tribunal makes decisions about labour disputes and it regulates its own procedures as to how it will do so. This includes complaints about things like unfair dismissal, constructive dismissal, redundancy and discrimination in the workplace as well as reviewing certain decisions of the Labour Commissioner.

What is the Labour Arbitration Tribunal?

The Labour Arbitration Tribunal is an independent tribunal set up under the Labour Code, 2010 with the power to make orders and awards with the same force as an order or award of the High Court. The parties appearing before the Tribunal are entitled to the same rights or privileges as they would have before any court. In the exercise of its powers, it cannot be directed or controlled by any other person or authority.

What to expect when appearing before the tribunal?

The Tribunal hearings and trials are normally held at its office and the hearings are held in a hearing room, except it is possible to hold hearings and trials by video conference. Hearings are heard before the Chairman sitting alone and the trial is heard before three members who together are referred to as the full panel. They are the Chairman who will run the proceedings, a person representing the complainant or all complainants and a person representing the respondent or all respondents, who are each appointed by the Minister on the recommendation of the parties once the person has been approved to be on the Roster of Accredited Labour Arbitrators.

As of 01 August 2020, the current Chairman is Mr. Jamal S. Smith, LLB(Hons.), MCIArb.

You make your recommendation by writing to the person you wish to recommend and having them complete a Form of Consent. If they are not already on the Roster of Accredited Labour Arbitrators then they must ­le an application to be entered on the Roster. The person you recommend cannot charge you any fee unless that fee agreement is disclosed to the Tribunal when ­ling the Form of Consent.

The atmosphere is like the High Court but slightly less formal. For example, there are no wigs or gowns, but evidence is taken on oath and there are rules about what happens. You must be appropriately dressed and follow the Rules of Etiquette that will be provided to you by the Secretary to the Tribunal.

Case Management Hearings are held in private, but trials with the full panel are open to the public, unless the parties agree to have the trial in private or there is an issue of con­fidentiality that arises where the Tribunal feels it is necessary to hold the trial in private.

Will I have to pay costs?

The Labour Arbitration Tribunal is different to the High Court when it comes to costs. Unlike the High Court, you don't automatically have to pay the other party’s legal costs if you lose the case.

However, if you are represented by a legal practitioner you may still have to pay your legal practitioner, depending on what you agreed beforehand, including a contingency fee agreement. If there is a disagreement between you and your legal practitioner about your legal costs you may apply to the Tribunal to determine the reasonableness of the legal fees in accordance with the Legal Profession Act, 2015.

In order for the Tribunal to order the losing party to pay the costs of the winning party, or part of those costs, there must be exceptional reasons. If the Tribunal ­finds that there are exceptional reasons it will then go on to determine how much of the costs will have to be paid.

After ­ling a complaint and you change your mind, you can discontinue your claim at any time. For example, you might decide that you don't want to carry on your case because you feel that you may lose. You can discontinue by simply writing to the Secretary to the Tribunal saying that you want to discontinue your whole claim or a part of your claim. However, you would be responsible to pay the costs of the respondent when you discontinue a claim unless they agree otherwise.

If you settle the dispute with the other party, you simply need to ­le the terms of the settlement and the Tribunal will make a “Consent Award” that will bring the matter to an end.

If by the time your complaint comes before the Tribunal you wish to amend your complaint, you should make an interlocutory application to the Tribunal to do so by writing to the Tribunal outlining your request in full and supported by evidence. It is important that you do so early and ensure that your actions do not seek to take an unconscionable advantage of the respondent, since you would have already been before the Labour Commissioner and the Minister based on your complaint. Therefore, the Tribunal will consider its overriding objective and ensure that its decision is proportionate when determining whether to allow you to amend your complaint and to award costs to the respondents.

Either parties have a limited timeframe to amend their response to the complaint or reply to that response, but any other amendment requires an interlocutory application to be ­led supported by evidence.