Island Provisions Ltd v Samios
| Jurisdiction | Antigua and Barbuda |
| Judge | Benjamin, J |
| Judgment Date | 01 January 1995 |
| Neutral Citation | AG 1995 HC 1 |
| Docket Number | No. 86 of 1993 |
| Court | High Court (Antigua) |
| Date | 01 January 1995 |
High Court
Benjamin, J.
No. 86 of 1993
Dr. F. Ramsahoye, Q.C.for the applicant, Mr. D. Halstead with him.
No appearance of or for the respondent.
Jurisdiction - Industrial Court — Court awarded applicant compensation for unfair dismissal — Court only has jurisdiction to hear trade disputes — Industrial Court Act, s. 7(1) — Award null, void and of no effect.
By an award dated the 26th day of February, 1993, the Industrial Court ordered that the applicant/employer pay to the respondent/employee compensation in the sum of $82,408.33 on or before the 31st day of March, 1 993 for unfair dismissal. On 19th April, 1993 the Registrar of the Industrial Court certified the award pursuant to section 13(2) of the Industrial Court Act, 1976 and the said certificate was filed in the Registry of the High Court for the purposes of enforcement pursuant to subsection (3) of the said section 13 of the said Act.
The proceedings in the Industrial Court were initiated by a Reference (subsequently numbered 8 of 1991) dated and submitted on 25th March, 1991 and signed by Gerald A. Watt (Solicitor) for and on behalf of respondent/employee.
The opening sentence of the Reference reads:
“In accordance with the provisions of section 19 of the Industrial Court Act (No.4 of 1976) notification is hereby given of the existence of a trade dispute between CONSTANTINE SAMIOS …and ISLAND PROVISIONS LIMITED…”
It is further stated:–
“The issues in this dispute between the parties are:–
(a) the summary dismissal of the employee by the employer company on the 17th March, 1989, for an insufficient and unlawful reason.
(b) whether the dismissal was in breach of the provisions of the Antigua and Barbuda Labour Code Number 14 of 1975 of the Laws of Antigua and Barbuda.
(c) whether the dismissal was contrary to sound industrial practice and contrary to the principles of natural justice.”
The Reference was heard by the Industrial Court. In the context of these proceedings, it is pertinent to note that no objection was made to the jurisdiction of the Court. In its Judgment dated 26th February, 1993, the said court stated that the applicant/employer had admitted that the respondent/employee was unfairly dismissed and proceeded to make an award of compensation in the terms hereinbefore stated.
On 24th March, 1993, the applicant/employer caused a Notice of Appeal to be lodged in the Court of Appeal challenging the decision of the Industrial Court. The grounds of appeal relate to the quantum of compensation. There is no challenge to the jurisdiction of the court; no doubt in deference to section 17(1) (a) of the Industrial Court Act, 1976 (now Chapter 214 of the 1992 Revised Edition of the Laws of Antigua and Barbuda). The said Appeal remains pending to date.
Upon an ex parte application dated 27th July, 1993 made to the High Court, leave was sought to apply for an order of certiorari in respect of the said award of the Industrial Court. On 9th June, 1994, the court granted leave and further ordered that all proceedings be stayed pending the hearing and determination of an application for an order for certiorari.
In compliance with the requirements of Order 44, rule 3, the applicant made an application by way of motion seeking an order of certiorari. Notice of the said motion was served upon Mr. Gerald Watt, solicitor who acted for and on behalf of the respondent/employee at the Industrial Court hearing. Mr. Watt apparently did not refuse service and indeed he appeared in court on 27th June, 1994 and sought leave to file an affidavit in answer. Subsequently, he protested the lack of personal service. This necessitated the making of an application for leave to effect substituted service upon the respondent/employee out of the jurisdiction; the said application was granted and service was verified by affidavit. Thereafter, there was no representation of the respondent\employee in the proceedings.
The motion came on for hearing on 16th January, 1995 and there was no appearance of or for the respondent. The application proceeded without opposition. Consequently, the court was only afforded the benefit of the arguments proferred on behalf of the applicant. I do not intend any disrespect when l admit to a certain unease about being deprived of the time-honoured adversarial system fundamental to the common law jurisprudence.
The applicant relied upon an affidavit sworn to by Kraig Moore, the General Manager of the applicant company (the employer) and statement made pursuant to Order 11, rule 1, both dated 27th July, 1993 and filed in support of the application for leave. The said statement set out the grounds upon which the order for certiorari are sought. The following are the stated grounds:–
“1. The Industrial Court had no jurisdiction to entertain or adjudicate upon the respondent's claim did not arise in relation to a trade dispute and the Industrial Court usurped the functions of the hearing authorities established by the Antigua Labour Code for the hearing of complaints of unfair dismissal and the provisions relating thereto in Part V thereof.
2. A solicitor has no authority by himself or as servant or agent and/or as legal representative of an employee to refer an employment dispute concerning unfair dismissal to the Industrial Court on behalf of an employee where there is no trade dispute involved.
(3) A person claiming that he was unfairly dismissed within the meaning of the Antigua Labour Code has a statutory remedy under sections C.62 to 69 of Part V of the said Labour Code and is confined thereto.
(4) An individual employee may not by himself or by a legal representative refer a complaint of unfair dismissal to the Industrial Court Act…
(5) A trade dispute is such as is defined in section A5 of the Antigua Labour Code and none existed at any material time between the applicant and any other body whereby a disagreement within the employer-employee relationship had led or might have led to an interruption of employment by lockout or strike.
(6) The judgment order and award of the industrial Court dated 26th February, 1993 may not be lawfully enforced by the High Court and the compensation awarded is not payable because the award of the Industrial Court is null and void and of no effect and is one which the applicant is entitled to have quashed and/or set aside ex debito justitiae.”
Each ground was addressed in argument by learned Queen's Counsel for the applicant.
The Court's attention was drawn to section 17(4) of the Industrial Court Act, 1 976 which provides as follows:–
“(4) subject to subsection (1), the hearing and determination of any proceedings before the Court, and an order or award or any finding of decision of the Court in any matter (including an order for award) (a) shall not be challenged, appealed against, reviewed, quashed or called in question in any court...
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