Cable & Wireless (West Indies) Ltd Employer/Appellant v Daima Hill Donald Gardner Lionel George Alston Turner Henzelle Richards Patrick Labadie Blashford Welkins Calvin Edwards Moody Mason Edward Doram Robin Romeo Employees/Respondents [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | BERRIDGE, J.A. |
| Judgment Date | 15 November 1982 |
| Judgment citation (vLex) | [1982] ECSC J1115-1 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | INDUSTRIAL COURT APPEAL NO. 1 of 1981 |
| Date | 15 November 1982 |
IN THE COURT OF APPEAL
The Hon. Sir Noville Peterkin, Chief Justice
The Honourable Mr. Justice Berridge
The Honourable Mr. Justice Robotham
INDUSTRIAL COURT APPEAL NO. 1 of 1981
Henry Ford, Q.C., (B'dos.), Sir Fred Phillips & Steve Browne for the appellant,
Bernice Lake, Marcel Commodore & Gerald Watt for the respondents.
This is an appeal by Cable & Wireless (W.I.) Ltd. (hereinafter sometimes referred to as the Company) from the decision of the Industrial Court (hereinafter sometimes referred to as the Court) dated the 5th October, 1981, in which it was ordered that each of the employees listed as respondents (other than Edward Doram and Robin Romeo)
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(1) be re-instated without loss of pay benefits or privileges in the same (or a similar) position which he held with the Company on the date of his dismissal;
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(2) be awarded certain damages from which must be deducted the amounts paid by the Company to each employee on his dismissal in so far as it relates to ex-gratia pay in lieu of notice;
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(3) be awarded costs in the sum of $3,000.00.
It was further ordered that the full pension rights and privileges of each of the said employees together with full benefits under the Staff Dependents Fund and the West Indies Medical Scheme be preserved and continued as if there has been no termination of employment.
From this order the Company has appealed from the whole decision save and except those portions dealing with the respondents Doram and Romeo and vacation leave on the following initial grounds—
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"(1) The Honourable Court misdirected itself or erred in law in holding that the first nine Respondents were unfairly dismissed.
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(2) The Honourable Court misdirected itself or erred in law in ordering that each of the Respondents other than Robin Romeo and Edward Doram be reinstated without loss of pay, benefits or privileges and in addition awarding them damages.
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(3) The Honourable Court misdirected itself or erred in law in its construction of section 10(4) of The Industrial Court Act (No. 4 of 1976).
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(4) The Honourable Court was wrong in law in holding that the dismissals of the Appellants except Robin Romeo and Edward Doram had taken place in circumstances that were not in accordance with the principles of good industrial relations practice.
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(5) The Honourable Court was wrong in making an order for re-instatement.
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(6) The Honourable Court misdirected itself or erred in law as to the standard of proof necessary in cases of this nature.
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(7) The decision cannot be supported by the evidence and ought to be set aside."
And on the following additional grounds—
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"1. That the Honourable Court misdirected itself in construing the true meaning, purpose and intention of Parliament in regard to section 9(1) of the Industrial Court Act 1976.
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2. That the Honourable Court misdirected itself and was wrong in law in excluding evidence which the Employer/Appellant considered vital to its case."
Respondents notices were filed by all the employees, the first-named nine craving a variation of amounts awarded by way of damages and costs as being inadequate while the notice in so far as it related to the last two respondents alleged—
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(a) that the Court erred in finding that they were justifiably dismissed from their employment by the employer on the same and/or similar evidence rejected by the said Court in respect of the other respondents;
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(b) that the Court erred in law in finding that they were deemed to have abandoned their claims against the employer because they failed to give evidence on their own behalf at the hearing of the reference.
A brief summary of the facts and circumstances leading up to suspension and ultimate dismissal of the eleven employees is necessary, indeed essential, in order to appreciate the atmosphere which prevailed among management and staff at the premises of the Company at Clare Hall on the 28th February, 1979.
It appears that following an award delivered by the Court on 9th February, 1979 which was not well received by the employees, the work output was markedly reduced to such an extent that it became necessary for the Manager of the Company to issue a letter dated 23rd February, 1979 to the staff but this did not bring about any improvement.
At what was described as a Management/Union/Shop Steward meeting held on the 23rd February, 1979 in the minutes under the heading "Return to normalcy by Staff" appears the following "Union feels that staff are working under severe pressure".
At about 1.20 p.m. on the 28th February, none of the eleven respondents was on duty for one reason or another. Hill alleged that he got permission to meet a Jaycees official due to arrive in the State.
Labadie alleged that he obtained permission to keep an appointment with his lawyer regarding a private matter. Wilkins alleged that he left the premises of his own volition for the Telephone Company on the business of the appellant Company. Richards was ill from the previous evening and the remaining respondents fell ill after the luncheon period on the 28th February.
At about 1.35 p.m. Wheeler returned to the Company's premises at Clare Hall and found a fault docket on his desk on which was written "1320. ATTN. A. WHEELER. M. Mason sick also C. Edwards ET R. ROMEO ET E. DORAM." Wheeler understood the note to mean that the persons named had gone off sick at 1320 hours or 1.20 p.m. and subsequently discovered that they were not in the Telephone Control Centre which was manned by them nor had they handed over to anyone.
At about 2 p.m., while at the Telephone Control Centre, Wheeler received telephone calls from St. Kitts and Montserrat in quick succession. As a result Wheeler proceeded to check the Reuter News Services from Barbados and found that it was out of operation. He was in the process of checking all this when Benjamin made a report to him as a result of which he discovered that a plug in the back of a Modem relating to Eastern Airlines Data System was partially out of its socket the effect of which was that the St. Lucia, Barbados, Port of Spain Data System was interrupted, that is to say that these places had lost the Data going south from Antigua thus rendering their part of the system inoperative. In addition this affected the Low Speed System to St. Kitts, Turks Island, Martinique and Guadeloupe. The system was returned to normal by re-inserting the loose plug.
Consequent upon Benjamin's report Wheeler made a further check and found that the British Airways Data System to the south of Antigua was not functioning and while trying to rectify the situation his attention was drawn by a consolidating technician to the back of the cabinet where he, Wheeler, found 2 transmit wires carrying data south to St. Lucia and Barbados had been severed thereby interrupting the data south of Antigua.
It may be mentioned here that Keith Wood a technician recorded in Ex D H22 that Barbados had advised that the British Airways Data System had failed at 1.20 p.m.
Wheeler reported his findings to Eustace Phillips, Engineer Operations, who in turn, called the Branch Engineer and the Manager to the scene.
In addition, the evidence on record makes it abundantly clear that all concerned were working under severe strain in an atmosphere charged with bad relations based on ethnic factors where, on the one hand, management for the most part consisted of ex patriates, and on the other technicians were of local origin. Coupled with this there appears to have been the further element of professional jealousy.
By letter dated the 28th February, 1979, all the employees/respondents were suspended from duty by the Manager and on the 27th March, 1979, they were dismissed with effect from the 31st March, 1979, by a further letter from the Manager giving reasons for their dismissal. Some of the respondents were paid the equivalent of three months salary while others were paid the equivalent of four months salary and in the cases of all but the respondents George, Richards and Mason vacation leave pay was granted.
Except in the case of Henzelle Richards who did not report for duty on 28th February, 1979, and against whom there was no allegation of interference with the Company's equipment, the letters of termination of employment in each case alleged—
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(i) Neglect of duty
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(ii) Wanton interference with equipment of the Company within the area of responsibility discovered after leaving duties
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(iii) Misconduct indicating that the employer/employee relationship could not reasonably be expected to continue.
The material date in the allegations in (i) (ii) and (iii) above in each case was 28th February, 1979. The reasons, it is observed, though couched in similar terms, were not necessarily similar in content and in each case particulars under the various reasons were sought and obtained by Counsel for the employees.
It is convenient at this stage to set out in brief the findings of the Court in regard to the reasons stated for the dismissal of the respondents.
(i) In regard to the allegations of neglect of duty the Court accepted the explanations of the respondents and went so far as to say that in any case where the version of the respondents differed from that of Bolton, the Assistant Engineer (whose evidence was largely that of the Company) it was prepared to accept the version of the former and further that, in any event in some instances the Company should have applied the provisions of sec (61(2) of the Antigua Labour Code and issued a written warning that in the event of repetition disciplinary action would...
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