Francis v Stephen R Mendez (Antigua) Ltd

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Lewis, P.,Ford, J.,Caines, J.
• Judgment Date: 14 June 1977
• Docket Number: No. 5 of 1997
• Date: 14 June 1977

Industrial Court

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

No. 5 of 1997

Francis

and

Stephen R. Mendez (Antigua) Ltd.

Labour Law - Termination — of Employment — Redundancy.

Labour Law - Termination — of Employment — Payment in Lieu of Notice.

The Judgment for the court was delivered by the President.

1 The claimant was employed with the respondent company (hereinafter called “the company”) form August 1 ^st, 1950 to January 31 ^st, 1977 - a period of 262 years.

2 The claimant's employment was terminated by the company for reasons of redundancy and a letter was sent to him by the Chairman and the Managing Director of the Company explaining why this step was necessary. The letter in question is exhibit OF1 and is dated December, 29 ^th 1976. This letter reads in part as follows:–

“Dear Mr. Francis

From time to time, I have had meetings with our Department Managers and have kept you informed of the serious and worsening financial position of the company. Because of this situation, I met with the Bank of Nova Scotia at their Head Office in Toronto in September, 1976. As a result of this meeting, and purely as a necessity for the company's survival, a very drastic programme of re-organization has had to be implemented.

The programme which is now being carried out involves drastic cuts and control in expenditure, affecting also redundancy of top administration personnel, a member of the Mendes family, down to employees through various departments.

As I mentioned to you, a decision has been taken to reduce the scope of this operations of the Hardware Department, to make it smaller, tighter operation, specializing in fewer lines then have hitherto been carried. Nevertheless, meantime, until working capital can be found to finance the purchase of certain stocks, the Department will have to be operated on a very scanty basis.

After very careful consideration and much hesitancy, I regret that under the circumstances, I have to make the post of Hardware Department Manager redundant, effective January 1 ^st, 1977.”

3 The claimant had held the post of Manager of the Company's Hardware Department for a period of 18 years prior to the termination of his services and in accordance with section C 43 of the Antigua Labour Code (hereinafter referred to as The code”) he was entitled to severance pay on the termination of his employment by the company for reasons of redundancy.

4 He was employed under an oral contract on a monthly basis and he received a salary of $974 per month and an additional $50 per month as an entertainment allowance.

5 Enclosed with the letter exhibit CF 1 was cheque for $13316.10 which (viz. One month's salary in lieu of notice, severance pay and holiday pay) and certain moneys which the company said was owed to it by the claimant. The claimant accepted the cheque but was not satisfied with the amount thereof and he so informed the Chairman of the Board of Directors of the Company who told him that he was at liberty to consult a lawyer if he so desired. a lawyer if he so desired. The claimant took the matter to the Ministry of Labour but no settlement was arrived at and the Minister of Labour accordingly referred the dispute between the parties to this court. The reference by the Minister of Labour to this court lists the issues in dispute as follows:

(1) Notice period;

(2) Quantum of severance pay;

(3) Deduction by the employer of certain sums from the employee's compensation.”

6 Before dealing with these matters the court wishes to make a few general observations which will be relevant in deciding the issues which are before it. The first observation is that the code lays down minimum standards which may be varied by an employer either unilaterally or by agreement with an employer or employee or by collective agreement with employee's representative, but any such variation must secure to an employee conditions more advantageous than the minimum standards laid down in the code. This is the effect of section A8 of the code which reads as follows:

7 AA8. Nothing herein shall be construed as prohibiting an employer, either unilaterally, by collective agreement with employee representatives, from establishing working conditions more advantageous to employees than those minimum standards which are set forth in this code.”

8 The second observation is concerned with the principles governing the administration of the code as set out in section B2 thereof. The particular paragraph of this section to which we wish to refer is paragraph (4) which reads:–

“Where standards or criteria are set forth in one or another provision of the code, they shall be adhered to in the administration thereof.”

9 Our understanding of this paragraph is that where principles are laid down in the code for the determination of any matter those principles must be observed, and it is not open to this court to apply other principles contained either in the statute or common law or to take cognizance of Acurrent industrial practices” (to borrow an expression from paragraph 5 of the claimant's memorandum) to decide any dispute which may be referred to it.'

10 Thirdly the long title to the code shows that its purpose is “to bring together in terms appropriate for the present state of the Antigua economy, all legislation applicable to employment standards, and industrial relations.” to achieve this purpose all Labour Legislation in existence at the time when the code came into effect was repealed and replaced by provisions in the code. It would thus appear that the code is intended to be the only document to which reference may be made in determining questions relating to industrial matters in this state.

11 We will now turn to the issues raised in the claimant's memorandum.

Notice:

12 It will be observed from paragraph 12 of the claimant's memorandum that his claims against the company are solely and exclusively money claims. The gravamen of his contention is that the company in settling its obligations to him has not paid him the full amount to which he believes himself to be entitled. There is no suggestion that the claimant has been unfairly dismissed, and all that the claimant is seeking from the company is the payment of additional sums of money in liquidation of its financial commitments to him. The claimant's claim against the company under this head of his claim is for $1994 representing two additional month's pay in lieu of notice. The code requires advance notice to be given to an employee whose services are being terminated and specifies the period of notice, but it provides in section C 9(3)(c) that “in no case need the period of said advance notice exceed 30 days unless an employment contract calls for a longer period.” This provision is applicable where an employer terminates an employee's contract of service, as in the instant case. The code requires advance notice to be given to an employee whose services are being terminated and specifies the period of notice, but it provides in section C 9(3)(c) that “in no case need the period of said advance notice exceed 30 days unless an employment contract calls for a longer period.” This provision is applicable where an employer terminates an employee's contract of service, as in the instant case. The claimant's evidence on this issue is that he should have been given three months notice payment in lieu thereof. This contention can only be sustained if the claimant were able to show his contract of employment called for a longer period of notice than 30 days. There is admittedly, no written contract between the parties calling for a longer period of notice, nor has any evidence been adduced by the claimant to show that the oral contract under which he was employed required by the company to give him more than 30 days notice. Counsel for the claimant invited the court to fall back on common law principles and determine the length of notice which should have been give to the claimant, and in support of this contention he quoted three cases ( Rouse v Mendosa [1968] 12 W.I.R. 1 Hill v Parsons [1971]...