Humphrey Michael Blackburn v Liat (1974) Ltd

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA
• Judgment Date: 20 September 2018
• Neutral Citation: AG 2018 CA 6,[2018] ECSC J0920-2
• Docket Number: ANULTAP2017/0001
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 20 September 2018

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

ANULTAP2017/0001

Between:

Humphrey Michael Blackburn

Appellant/Respondent

and

Liat (1974) Ltd.

Respondent/Counter Appellant

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Appearances:

Mr. Ruggles Ferguson with Mr. Septimus Rhudd and Mrs. Margaret Blackburn Steele for the Appellant/Respondent

Mr. Douglas Mendes, SC with Ms. Bellina Barrow for the Respondent/Counter Appellant

Labour Tribunal appeal - Employment — Unfair dismissal — Reasonableness of dismissal — Test for determining whether dismissal is unfair — Misconduct — Statements made publicly about employer — Antigua and Barbuda Labour Code — Whether court erred in finding that employee was unfairly dismissed — Compensation — Reduction of compensation — Court relying on transcripts and audio recordings which were not in evidence to reduce compensation — Whether court erred in so doing

Mr. Humphrey Michael Blackburn (“Mr. Blackburn” or “the Employee”) was employed by LIAT (1974) Ltd (“LIAT” or “the Employer”), as a pilot for more than 33 years. He was at the relevant time the President of the Leeward Islands Airline Pilots Association (“LIALPA”), which was the sole bargaining agent for the pilots who were in the employ of LIAT. There were ongoing industrial disputes between LIAT and the pilots and their grievances appeared to have found themselves in the public domain. It appears that during the ongoing disputes between LIAT and LIALPA public comments were made by either side. It is alleged that LIAT through its management caused certain assertions to be made against the pilots publicly and Mr. Blackburn is said to have made offending remarks about LIAT and its management during radio interviews.

LIAT was upset by Mr. Blackburn's comments and by letter dated 5 ^th December 2011, referred to the statements that he had made, indicating that they amounted to misconduct as defined by the Antigua and Barbuda Labour Code and consequently terminated his employment.

On 18 ^th June 2013, Mr. Blackburn filed a reference in the Industrial Court in which he challenged his dismissal on the basis that it was unfair, arbitrary and without due process. He also claimed that because of the unfair dismissal, he was entitled to be compensated. He said that the statements that he made were made in his capacity of Chairman of LIALPA and did not in any way detract or undermine his loyalty to LIAT. He denied that his utterances amounted to misconduct at all, and in any event, were spoken in his capacity as a union leader and did not warrant his dismissal. Importantly, he said that his termination was in breach of the Collective Agreement that LIAT had entered into with LIALPA.

After protracted proceedings in the Industrial Court, the court reserved its ruling. Nearly two years after the court, acting on its own volition decided to obtain and examine the recordings of Mr. Blackburn's statements to be guided by them in their deliberations. The court wrote to Mr. Blackburn and LIAT and indicated that it wished to have audio copies of the recordings of Mr. Blackburn's statements together with the copies of the transcripts. Mr. Blackburn indicated that he did not have copies of either and therefore did not provide any. LIAT however provided the Registrar of the Industrial Court with a copy of the transcript and the audio recordings. Mr. Blackburn eventually filed a notice of objection to the admission into evidence of copies of the transcripts.

The Industrial Court, in its judgment, concluded that Mr. Blackburn had been unfairly dismissed but reduced the level of compensation to which he was entitled, on the basis that he had significantly contributed to his unfair dismissal. In arriving at a reduction of 65% in compensation the court relied on the audio recordings and transcripts.

Mr. Blackburn only challenges the reduction of his compensation in this appeal. LIAT counter appeals challenging the court's decision that by reason of its unreasonable actions, Mr. Blackburn was unfairly dismissed. LIAT also challenges the court's determination that by reason of its unfair dismissal of Mr. Blackburn he is entitled to be compensated. The issues arising on the appeal and counter appeal are: 1. Whether the Industrial Court erred as a matter of law, by concluding that Mr. Blackburn was unfairly dismissed; and 2. Whether the Industrial Court erred, as a matter of law by relying on transcripts and audio recordings, which were not in evidence, as the basis to reduce the level of compensation by 65%.

Held: allowing the appeal; setting aside the order for compensation; directing that the Industrial Court conducts the assessment of compensation on an expedited basis utilising only the evidence that was adduced during the trial; dismissing the cross appeal and making no order as to costs, that:

• 1. It is common ground that the test that to be applied to determine whether a dismissal was unfair is that of reasonableness. In determining whether an employer acted reasonably, an industrial tribunal is not to substitute its own decision for that of the employer as to the right course to adopt, but instead was to determine whether the decision to dismiss fell within the band of responses which reasonable employers might have adopted.

  Polkey v AE Dayton Services Ltd [1988] ICR 142 applied; Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 applied; Iceland Frozen Foods Ltd. v Jones [1983] ICR 17 applied.

• 2. In the present case, the Industrial Court applied the correct test of reasonableness and properly reached the conclusion to which it arrived. In so doing, the Industrial Court thoroughly reviewed the totality of circumstances and examined the important issue of whether the decision to dismiss Mr. Blackburn fell within the band of reasonable responses which a reasonable employer might have adopted and concluded that it did not. It was clearly open to the Industrial Court to so conclude. Therefore, there is no basis upon which to interfere with the Industrial Court's decision and it cannot be assailed.

  Whitbread plc (trading as Whitbread Medway Inns) v Hall [2001] ICR 699 applied.

• 3. Natural justice or basic fairness required that the Industrial Court in its determination of the issues that were before it, act only on the evidence that was adduced. Procedural fairness required the Industrial Court to refrain from including evidence sought and obtained on its own volition after the close of the trial and more critically from relying on those audio recordings and transcripts to reduce the compensation to which Mr. Blackburn was entitled. It is even more egregious in circumstances where, as obtained in the case at bar, Mr. Blackburn had specially filed a notice of objection to the transcripts being admitted. Accordingly, in so far as the Industrial Court relied on the transcripts and audio recordings, it amounted to a miscarriage of justice and the Industrial Court's assessment of Mr. Blackburn's compensation can properly be impugned.

• 4. The statutory provisions of the Industrial Court Act confer exclusive jurisdiction in the Industrial Court to award compensation to persons who have been unfairly dismissed. Thus, the appellate court has no jurisdiction to exercise the discretion afresh to assess Mr. Blackburn's compensation and must remit the aspect of assessment of compensation to the Industrial Court.

  Sections 10 and 17 of the Industrial Court Act applied; Caroni (1975) Limited v Association of Technical Administrative Supervisory Staff. (2002) 67 WIR 223 considered.

Introduction

Blenman JA

1 This is an appeal by Mr. Humphrey Michael Blackburn (“Mr. Blackburn” or “the Employee”) against the majority decision of the Industrial Court in which the court, having concluded that Mr. Blackburn had been unfairly dismissed by LIAT (1974) Ltd (“LIAT” or “the Employer”), reduced the level of compensation to which he was entitled, on the basis that he had significantly contributed to his unfair dismissal. Mr. Blackburn only challenges the reduction of his compensation in this appeal.

2 There is also a counter notice of appeal by LIAT in which it challenges the majority decision of the Industrial Court, namely that by reason of its unreasonable actions, Mr. Blackburn was unfairly dismissed. LIAT also challenges the Industrial Court's determination that by reason of its unfair dismissal of Mr. Blackburn he is entitled to be compensated.

Factual Background

3 LIAT is a limited liability company that provides the main means of air transportation in and between several Caribbean countries. Indeed, it provides critical air services to several countries and contributes greatly to the integration of our countries.

4 Mr. Blackburn was employed by LIAT as a pilot for more than 33 years and attained the rank of captain. He was at the relevant time the President of the Leeward Islands Airline Pilots Association (“LIALPA”), which was the sole bargaining agent or trade union for the pilots who were in the employ of LIAT. There were ongoing industrial disputes between LIAT and the pilots and their grievances appeared to have found themselves in the public domain. Prior to this, Mr. Blackburn had distinguished himself as an employee of LIAT and a few short years earlier, LIAT recognised him for excellent service. In fact, he is said to have had an unblemished record before the occurrence of the events that are the subject of this appeal.

5 The employer —employee relationship between LIAT and the pilots, including Mr. Blackburn, was largely governed by the provisions of the Antigua and Barbuda Labour Code, 1 and a Collective Agreement between LIALPA and LIAT. 2

6 It appears that during the ongoing disputes between LIAT and LIALPA public comments were made by either side. It is alleged that LIAT...