Antigua Trades and Labour Union v Smith

• Jurisdiction: Antigua and Barbuda
• Judge: Lewis. C.J.,Gordon, J.A.,St. Bernard. J.A.
• Judgment Date: 17 March 1970
• Neutral Citation: AG 1970 CA 32
• Docket Number: Civil Appeal No. 3 of 1969
• Date: 17 March 1970
• Court: Court of Appeal (Antigua and Barbuda)

Court of Appeal

Lewis, C.J.; Gordon, J.A.; St. Bernard, J.A.

Civil Appeal No. 3 of 1969

Antigua Trades and Labour Union

and

Smith

Industrial law - Termination of employment — Wrongful dismissal.

Facts: The issues were whether a relationship of master and servant existed between the plaintiff and defendant and whether the respondent's dismissal was wrongful and ultra vires. Evidence revealed that the plaintiff was a field officer of the defendant union. He refused to hand over the keys to the Union's car to its executive, indulged in abuse on the defendant's premises and demonstrated against the defendant union The trial judge had found that the dismissal was wrongful and awarded the respondent (then the plaintiff) damages, On appeal, held that the trial judge had failed to distinguish between the rights of the respondent as a member of the Union and his rights and obligations as an employee, i.e., field officer. Order that the case be remitted to the High Court for a new trial on the issue only whether the respondent was guilty of conduct which was inconsistent with the relationship of master and servant and a breach of an essential condition of his contract of employment as field officer, so as to justify his dismissal.

Lewis. C.J.

1 In February 1966 the appellant Union (hereinafter referred to as “the Union”) engaged the services of the respondent, as a full time field officer. He was at the time a member of the Union, and in September 1966 was elected a member of the Executive Committee. As a field officer he was entitled to use a Union car for the purposes of his work.

2 On 5th May 1967, the respondent attended a meeting of the Executive Committee at which a decision was taken to dismiss the General Secretary, George Walters and another field officer, one Halstead.

3 On 8th May a meeting of the Executive Committee considered reports that the respondent had been using the Union's car going from place to place encouraging members of the Union to demonstrate against the dismissal of Walters and Halstead, deemed his conduct in so doing to be prejudicial to the best interests of the Union, and decided to dismiss him. The respondent was not summoned to this or any subsequent meetings of the Executive Committee.

4 The respondent brought, the present action alleging that he had been wrongfully dismissed, and also that he had been wrongfully expelled from membership of the Executive Committee. He claimed damages and declarations that(a) his dismissal was wrongful and (b) his expulsion was ultra vires and void.

5 By its Defence the Union denied that it had expelled the respondent from membership of the Executive Committee. With respect to the respondent's dismissal it alleged that he had been guilty of conduct inconsistent with the relationship of master and servant.

6 At the trial evidence was tendered on behalf of the Union that on Sunday 7th May the respondent was heard telling members of the Union at Potters that because of the dismissal of Walters and Halstead the “union has to smash up”, and that they must form their own union; that on the morning of Monday 8th the Acting Secretary, Sheppard, informed the respondent that he had received information that he had been using the Union's car going from place to place encouraging people to demonstrate against the dismissal of Walters and Halstead, and that he had been instructed to suspend him pending a decision by the Executive Committee; and that later that same day Sheppard heard him urging people through a loud-speaker to demonstrate against the Union. The minutes of the meeting of 8th May and rule 10 of the rules of the Union were put in evidence.

7 The respondent denied that he had urged members to smash up the Union or to form a new Union. At the trial a preliminary objection was taken on behalf of the Union that the action could not be entertained by the court because of section 5(a) of the Trade Union Act, Cap. 376, it being submitted that the effect of that section was to prohibit actions by a member of a union against his union to enforce a contract of employment with the union or to recover damages for its breach.

8 In a reserved judgment the learned judge overruled the objection and held –

9 (1) that the Executive Committee at its meeting of 8th May 1967 had no legal evidence before it on which to reach a conclusion that the respondent had been encouraging people to demonstrate against the Executive Committee; (2) that even if it had such evidence the respondent, if he disagreed with the Committee's decision, was entitled to agitate and this would not be conduct prejudicial to the best interests of the Union; (3) that in any event the Executive Committee had acted improperly in that in deciding to dismiss the respondent it had not observed the rules of natural justice since it had not afforded him an opportunity of being heard on a charge previously preferred against him. Upon those findings he held that the dismissal was wrongful.

10 The learned judge further held that the respondent had not proved that he had been expelled from the Executive Committee.

11 Accordingly he made a declaration that the plaintiff's dismissal as Field Officer was wrongful and awarded him $762 damages.

12 Against this judgment the Union appealed.

13 Before us learned counsel for the Union did not pursue the appeal in so far as it related to the quantum of damages. He however contended–

• (1) that the court could not enforce a contract of service between a member of a trade union and the union itself.

• (2) that the learned trial judge misdirected himself in holding (a) that the respondent was entitled to be heard by the Executive Committee at the time of his dismissal; (b) that the conduct of the respondent in going around encouraging members to demonstrate against the action of the Executive Committee was not prejudicial to the interests of the Union.

14 With respect to ground (1) learned counsel submitted that the contract of service between the respondent and the Union was in fact a contract between him and all the members of the Union: it was therefore caught by section 5(a) of the Trade Unions Act. Cap. 376, and an action for damages for its breach was not maintainable.

15 This section is as follows:

“5. Nothing in this Act shall enable any court to entertain any legal proceedings instituted with the object of directly enforcing or recovering damages for the breach of –

• (a) any agreement between members of a trade union as such concerning the condition on which any members for the time being of the union shall or shall not sell their goods, transact business, employ or be employed;

Nothing in this section shall be deemed to constitute any of the above mentioned agreements unlawful.”

16 This section is similar to section 4(1) of the Trade Union Act, 1871 (U.K.) which has on more than one occasion received authoritative construction by the House of Lords.

17 It is now clearly established that a member of a registered trade union can maintain an action for damages for breach of contract against the union in its registered name. This is so even though, as the majority of the learned law Lords held in Bonsor v. Musicians' Union [1956] A.C. 104, a trade union may not be a legal entity. Bonsor's case expressly rejected the argument that a member expelled by the Executive Committee cannot recover because the committee, in so doing, was acting as his agent. Lord MaCDermott said, (at p. 149) : –

“It may be that a union committee or official, while investigating a complaint against a member, can be said to be acting on his behalf, I do not need to decide that or to say where the line is to be drawn. We are now concerned with a later stage, with the act of expulsion, when what is being done is to thrust a party to the contract out of the combination on the ground that he is no longer entitled to any of the rights or privileges of membership. To say that that is done on behalf of the person expelled seems to me an unwarranted extension of the agency and quite out of keeping with reality.”

18 In my opinion this answer is equally potent when as in the present case the contract is one of service between an individual, albeit a member of the union, and the union. In no sense can the Union, purporting to exercise its rights as master to terminate the contract and dismiss the employee because of conduct inconsistent with the relationship of master and servant, be said to be the agent of the employee.

19 Moreover, section 5(a) quite plainly does not apply to the contract of employment in this, case. That section was intended –

“to keep the contracts of union members respecting the main purposes of their combination outside the jurisdiction of the courts. The description accords with what has long been the generally accepted view of the bond by which the members of a trade union are held in association, namely, the contract between members which is formed on admission by an acceptance of the union rules. But it does not refer to agreements between a union and its members.”

20 See Bonsor v. Musicians Union (supra) per Lord MacDermott at p. 135, 136.

21 The present action does not seek to enforce any term or condition of the agreement between the members based upon an acceptance of the rules or to recover damages for breach thereof. It_ concerns an agreement between the respondent as an individual and the Union as an entity.

22 I agree with the ruling of the learned trial judge that the court had jurisdiction to entertain the actions.

23 Grounds 2(a) raises the question whether in deciding to dismiss the respondent from his post of field officer the Executive Committee was bound to observe the rules of natural justice, that is, to acquaint him with the charge against him and to give him an opportunity to be heard. In holding that it was bound so to do the learned...