Antigua and Barbuda Transport Board v Anderson Carty; Antigua and Barbuda Transport Board v Anique Francis

• Jurisdiction: Antigua and Barbuda
• Judge: ‘Thom JA’
• Judgment Date: 27 July 2023
• Neutral Citation: AG 2023 CA 6
• Court: Court of Appeal (Antigua and Barbuda)
• Year: 2023
• Docket Number: ANUHLTAP2020/0005

BETWEEN:

Antigua and Barbuda Transport Board

Appellant

and

Anderson Carty

Respondent

BETWEEN:

Antigua and Barbuda Transport Board

Appellant

and

Anique Francis

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Trevor Ward Justice of Appeal

The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]

ANUHLTAP2020/0005

ANUHLTAP2020/0006

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Labour Tribunal — Employment law — Unfair dismissal — Appeal against compensatory award — Whether the Industrial Court erred in its calculation of the respondents' compensatory award — Immediate loss of wages — Whether the Industrial Court's award of immediate loss of wages was arbitrary — Compensation for loss of wages to be based on net salary — Mitigation of loss — Employee's duty to mitigate loss — Employer's burden to prove failure to mitigate — Whether respondents failed to mitigate their losses — Payment in lieu of wages — Double recovery — Loss of future earnings — Exemplary damages — Whether the conduct of the employer was oppressive, arbitrary or unconstitutional — Manner of dismissal — Whether the manner and circumstances of his dismissal could give rise to any risk of financial loss at a later stage — Loss of Protection — Whether the first respondent is entitled to an award for loss of protection — Thrift Fund entitlement — Whether the Industrial Court erred in its award of thrift fund entitlement to the first respondent — Costs — Section 10(2) of the Industrial Court Act Cap 214 Laws of Antigua and Barbuda — Award of costs by employment tribunal exceptional — Whether the Industrial Court erred in its award of costs to the respondents

The first respondent, Mr. Carty, commenced employment with the Transport Board in April 2006. During his tenure with the Transport Board, he held several positions including Human Resources and Training Officer and Operations Manager. In October 2014, a newspaper article had been published in Antigua and Barbuda informing the general public that the Transport Board had taken the decision to dismiss several of its managers including Mr. Carty. There was no evidence before the Industrial Court that the publication was at the behest of the Transport Board. At the time of the newspaper article's publishing, Mr. Carty had been on approved vacation leave. Upon resuming work, Mr. Carty received a letter dismissing him with immediate effect as a result of retrenchment. At the time of his dismissal, Mr. Carty was engaged as Operations Manager and was earning a monthly base salary of $7300.00 together with duty, traveling, and telephone allowances totalling $2500.00. The second respondent Ms. Francis, commenced her employment with the Transport Board in September 2013 as a Personal Assistant to the Operations Manager with a monthly salary of $2850.00 and traveling and telephone allowances totalling $400.00. Like Mr. Carty, Ms. Francis received a letter in November 2014, dismissing her from the Transport Board's employ with immediate effect, citing retrenchment as the basis for doing so.

Both Mr. Carty and Ms. Francis filed individual references to the Industrial Court, which were later consolidated. Mr. Carty and Ms. Francis both claimed that they were unfairly dismissed on the purported ground of redundancy arising from retrenchment by the Transport Board. Both respondents claimed that the dismissals were politically motivated and raised issues as to whether a genuine redundancy situation existed at the material time and whether the Transport Board acted reasonably in terms of its selection process, consultation, notice, and manner of termination. The Industrial Court in its judgment concluded that there was an absence of a genuine redundancy situation and that the Transport Board failed the test of reasonableness by acting unreasonably when it dismissed Mr. Carty and Ms. Francis. The Industrial Court, therefore, declared that the respondents were unfairly dismissed and entitled to compensation under several heads of loss. In the case of Mr. Carty, Additional Pay in Lieu of Notice - $7300; Loss of Contractual Emoluments - $52,525.00; Thrift Fund Entitlements- $2370.39; Exemplary Damages - $25,000.00 and Costs - $2500.00. In the case of Ms. Francis, Loss of Protection - $1534.50; Immediate Loss - $15,250.00; Exemplary Damages - $2500.00 and Costs - $2500.00.

The Transport Board does not dispute the Industrial Court's conclusion on redundancy and the respondents’ entitlement to awards of compensation, however, the Transport Board disputes the Industrial Court's calculation of those awards. As a result, the Transport Board has filed 5 grounds of appeal. Mr. Carty has also filed a counter-appeal against the Industrial Court's failure to make an award under the head ‘Loss of Protection’ to him. The broad issue, for this Court to determine is whether the Industrial Court erred in its calculation of the respondents’ award of compensation under the heads Immediate Loss of Wages, Exemplary Damages, Loss of Protection, Thrift Fund entitlement and Costs.

Held: allowing the appeal in part; allowing the counter-appeal; and making the orders at paragraph [87], that:

• 1. An unfairly dismissed employee may be entitled to an award of immediate loss of wages. This head of compensation represents the loss of wages or pay between the date of the employee's dismissal and the date of trial or judgment. The figure to be used in the calculation of immediate loss of wages or pay is the net salary or wage of the employee. The employee's entire pay packet is considered as the court's assessment under this head is not limited to the employee's basic wage but includes allowances and those items that form part of the employee's pay packet. Service charges and cash tips do not usually form part of the employees pay packet as they are not wages. Service charges and cash tips only form part of the pay packet where there is a contractual term, whether expressed or implied requiring the employer to distribute the service charge to staff or where there is a statutory mandate.

  In this case, Mr. Carty's and Ms. Francis' allowances are not or should not be likened to service charges. Further, these allowances formed part of their employment contracts. The terms of employment required the Transport Board to pay both respondents monthly salaries which included these allowances. These allowances, therefore, formed part of their pay packets. The Industrial Court was correct in including Mr. Carty's and Ms. Francis' basic salary and allowances in assessing an award under this head.

  Stair Memorial Encyclopaedia, Employment (3rd Reissue) Edinburgh: Butterworths, 1999 applied; Antigua Village Condo Corp v Jennifer Watt Civil Appeal No. 6 of 1992 (delivered 7th February 1994, unreported followed; Halsbury's Laws of England Employment (Volume 39 (2021), paras 1–346 applied; Brownson v Hire Service Shops Limited [1978] IRLR 73; Hilti (Great Britain) Ltd. v Windbridge, [1974] ICR 352 applied; Norton Tool Co Ltd v Tewson [1973] 1 All ER 183 applied; Carlisle Bay Resort v Berlinda Dowe ANULTAP2015/0002 (delivered 29 ^th November 2022, unreported) explained.

• 2. An award of immediate loss of wages is only available to an employee who has mitigated his loss between the date of his dismissal and the date of trial or judgment. The employee is under a duty to take proper and reasonable steps to obtain suitable employment during this period. The question whether there has been a failure to mitigate is one of fact to be determined by the tribunal. Further, when an employer seeks to allege that an employee has failed to mitigate a loss, the burden of proof is upon the employer making the allegations. In this case, it is for the Transport Board to show that Mr. Carty did not take reasonable steps to reduce the loss that he suffered as a result of his unfair dismissal. In this case, Mr. Carty sought alternative employment as evidenced by his 10 applications to various companies, and he formalised and expanded his consultancy practice. While it would have been useful if Mr. Carty had supplied the Industrial Court with proof of his earnings, the burden ultimately rests with the Transport Board that Mr. Carty did not take reasonable steps to mitigate his loss. In relation to Ms. Francis, she made reasonable efforts to mitigate her loss and was successful in finding alternative employment. There was, therefore, evidence before the Industrial Court on which it could base its finding that both respondents took reasonable steps to mitigate their losses during the period.

  Antigua Village Condo Corp v Jennifer Watt Civil Appeal No. 6 of 1992 (delivered 7th February 1994, unreported followed; Bessenden Properties Ltd v Corness [1974] IRLR 338 applied; AG Bracey Ltd v Iles [1973] IRLR 210 applied; Cooper Contracting Ltd v Lindsay UKEAT/0184/15 (22 October 2015, unreported); Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498) applied.

• 3. The employer is to be given credit for all payments it has made to the employee on account of claims for wages and other benefits. This is in compliance with good industrial relations practices. Therefore, sums paid by the employer in lieu of notice should be taken into account in the assessment of an unfair dismissal compensatory award. An employee is not entitled to both payment in lieu of notice and the compensation award during the notice period as this would result in double recovery. In this case, the employer, the Transport Board, was in compliance with good industrial relation practices as it paid Mr. Carty $7300.00 as payment in lieu of notice upon his dismissal. The Industrial Court in awarding immediate loss of wages should have taken this into account. However, it did not, and the Industrial Court went a step further and awarded an additional sum of payment in lieu of notice. There was no basis for doing so...