Defreitas v Bryson & Company Ltd

• Jurisdiction: Antigua and Barbuda
• Judge: Lewis, P.,Ford, J.,Caines, J.
• Judgment Date: 19 January 1979
• Docket Number: No. 6 of 1977
• Date: 19 January 1979
• Court: Industrial Court (Antigua)

Industrial Court

Lewis, P.; Ford, J. (Member); Caines, J. (Member)

No. 6 of 1977

Defreitas

and

Bryson & Co. Ltd.

Appearances

Antigua Workers' Union (represented by Baldwin Spencer and St. Lawrence DeFreitas) for the Employee

Time H. Kendall for the Employer.

Labour law - Termination of Employment — Redundancy.

Labour law - Termination of Employment — Compensation.

1 JUDGMENT: On June 15, 1958 Mrs. DeFreitas (the employee obtained employment with George W.B. Bryson & Co. Lid., (the company) in the accounts department at the head office of the company. She was attached to the accounts department throughout the whole of her service with the company, and on February 23, 1.973 she was appointed to a supervisory position in the said department which position she was holding when her employment was terminated by letter dated November 3, 1976. This letter which is marked “H,” reads: -

“Dear Mrs. DeFreitas,

This letter confirms in writing, the decision of the company to make your services with Brysons redundant effective immediately, as was related to you in our meeting today.

The company takes this opportunity in thanking you for your services to the company over the past 18 years, and regret having to rake this decision, but because of the existing economic situation of the company, we have to take a decision to streamline the operation in an effort to remain a viable concern,

Attached is your cheque and computation of your redundancy payment.

Yours faithfully

Geo. B. Bryson & Co. Ltd., Kenrick A. Isaac

Personnel Manager.

2 A cheque for $15, 145.54 accompanied this letter. The employee accepted the cheque and wrote the managing director of the company a letter the following day in which she advised him that “the acceptance of the above referred to cheque is without prejudice to any subsequent claims that I may deem fit and proper to make against your company arising out of” certain matters which she listed.

3 The employee contends that despite the fact that the reason for her dismissal was stated by the company to be on the ground of redundancy; she as in fact unfairly dismissed, and she has claimed compensation in the sum of $60,000 for her alleged unfair dismissal.

4 Section 60 (1) of the Antigua Labour Code 14 of 1975 (the Code) provides that the dismissal of an employee shall not be unfair if the reason assigned by his employer therefore is one of those specified in the section. In this ease the reason specified for the employee's dismissal is that contained in paragraph (c) of the section, and it is “that the employee was redundant” Since the company has admitted dismissing the employee on the ground of redundancy, it will have to, justify this action, and, accordingly, the burden of proving that a redundancy situation existed and that this was in fact the reason for the employee's dismissal rests on the company. This is the central issue in this case and if the company fails to establish it to the satisfaction of the Court, then it follows that the employee must inevitably be deemed to be unfairly dismissed, as she claims, and so, to be entitled to compensation.

5 By section C 3 of the Labour Code –

“‘redundancy’ means a situation in which, by virtue of a lack of customers’ orders, retrenchment, the installation of labour-saving machinery, an employer's going out of business, a force majeure, or any other reason, tasks, which a person was last employed to perform no longer exist.”

6 The application of this definition to the circumstances of this case has the effect of imposing on the company the obligation of proving that the duties attached to the supervisory position to which the employee was appointed by letter dated February 23, 1973, exhibit CM, and further extended by letter dated November 8, 1973 exhibit CI, no loner existed, and that it was for that reason she was made redundant. The duties, which the employee was called upon to perform, are contained in exhibit CM and include the following: -

• “1) Overall responsibility for posting subsidiary accounts receivable.

• 2) Control of individual accounts (Credit limits) etc., in consultation with the Credit Manager.

• 3) Reconciliation of Accounts Receivable.

• 4) Resolving all queries relating to Accounts Receivable, including Hire Purchase and Installments Payment plan.

• 5) Supervising all aspects of the Accounts Receivable.

• 6) Submitting daily reports of delinquent accounts and actions taken by you., and any other duties which may be designated to you from time to time.”

7 Exhibit CI, which extended the duties of the employee was to a great extent a repetition of exhibit CM, but it added two new functions to employee's list of duties, viz, “teaching the new clerk the operation of the machine and systems,” and “checking and supervising work of the new clerk, and any other duties in respect to Accounts Receivable which may be delegated to you from time to time.”

8 The company, like any other business organization cannot function without an accounts department and this fact need not be unduly stressed. It was put to the employee in cross-examination and accepted by her that the company actually created a new post for her for the purpose of giving her a promotion and it must therefore be assumed when the company did this, it considered the functions which the employee was called upon to perform to be essential to, and in the best interest of, the operations of the company. Our conclusion therefore is that whatever steps the company may have taken by way of retrenchment, re-organization, or fusion of duties or responsibilities it did so with full consciousness that the duties, which it last engaged the employee to perform, must continue to be performed.

9 The employee has given some indication of what has happened to the duties she was engaged to perform in her supervisory position, after she had left the company's employment. This is what she said in examination in chief: -

“At the present time one Mrs. Victoria Thomas is doing the work which I was employed to do. She was working in the accounts department with me when I was made redundant and she and others were appointed to take over my duties. My duties were distributed among other persons in the company including Mr. Isaac. I do not know the specific individuals between whom my duties were...