Martin v Bryson & Company Ltd

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Lewis, P.,Ford, J.,Caines, J.
• Judgment Date: 10 January 1979
• Docket Number: No. 7 of 1978
• Date: 10 January 1979

Industrial Court

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

No. 7 of 1978

Martin

and

Bryson & Co. Ltd.

Appearances

John E. Fuller for employee

Time H. Kendall for employer

Labour law - Termination of Employment — Dismissal.

Labour law - Termination of Employment — Compensation.

Labour law - Termination of Employment — Payment in lieu of notice.

1 JUDGMENT: The employee graduated at the University of the West Indies in 1973 with upper second class honours in chemical engineering, in which field he “majored in management study and process engineering.” He was a West Indies Oil Company scholar and on his return to Antigua in August, 1973 he was employed by that company as a junior process engineer in its technical service department. He worked with the West Indies Oil Company until January 30, 1976 when he resigned to take up employment with George W.B. Brysons & Co. Ltd. (hereinafter called the “company”) as the manager of the company's bottling plant.

2 The employee assumed duty with the company in February 1, 1976 and remained in its employment till April 11, 1976 when he was summarily dismissed.

3 The terms and conditions of the employee's service agreement with the company are contained in a letter dated January 30, 1976 Exhibit N.M. 1, signed by Mr. Kenrick Isaac, Personnel Manager of the company.

4 The material portions of this letter for the purpose of this inquiry are: –

“(3) To report the company Controller, Mr. N. Ikin, on all aspects of your responsibilities.”

Remuneration

• (1) Your salary will be $900 with a $100 travelling allowance per month.

• (2) You will be paid an incentive bonus as follows: –.

7 ¹/₂ on bottom line departmental profits up to $100,000 and thereafter 10%.”

5 Both parties agree that there have been oral amendments to the employee's remuneration as stated in Exhibit N.M. 1, in the following respects: –

• (a) His salary has been altered form $900.00 to $1,000.00 per month, an d,

• (b) the percentage of his incentive bonus on “bottom line departmental profits” has been increase from 7 ¹/₂ to 10%.

6 The solicitors for the parties also agree that the expression “bottom line departmental profits” means profits accruing to the company after payment of tax.

Adequacy of reason for dismissal

7 The company does not deny that it summarily determined that employee's services on April 11, 1978. the employee contends that the circumstances in which termination of his services were brought about rendered his dismissal unfair, but the company's contention is to the opposite effect.

8 In Jupiter General Insurance Co. Ltd. v Shroft, (1937) 3 ALL E.R. 67 (P.C.), Lord Maugham in delivering the opinion of the board, indicated the manner in which the board regarded the summary dismissal of an employee. He said at p.73 “Their Lordships recognise that the immediate dismissal o fan employee is a strong measure”. In the light of this statement we are of the opinion that summary dismissal is a measure, which should not lightly be pursued by an employer and is one, which can only be justified, in the most exceptional circumstances.

9 Section C 58 of the Antigua Labour Code 15/1975 (“Code”) confers on an employee whose probationary period with an employer has ended the right not to be unfairly dismissed by his employer an prohibits the dismissal of any such employee by an employer without just cause.

10 The reason given by the company for terminating the employee's service is contained in a letter written to him by Mr. Neville Ikin the controller of the company dated April 11, 1978 and marked N.M. 5. The relevant portion of this letter reads:

“Please take formal notice we are terminating your employment with this company as of today Tuesday April 11, 1978. Our reason for taking this action is that we consider there cannot be any harmonious and efficient relationship in the future between yourself, management and the Bottling plant workers.”

11 In considering whether the employee in this case has been unfairly dismissed this court must be careful to see that all the procedural requirements of the Code have been observed by the company.

12 Section C 10 (1) of the Code gives a clear indication of the nature of the statement to be furnished to an employee when an employer terminates his services. The section states that the employee is to be furnished with “a written statement of the precise reason for the action” (i.e. the action of the employer in terminating his services). It is true that this section envisages the situation where the employee has not in this case requested a statement from the company of its reasons for terminating his services. It is enough that the company has volunteered its reason for his dismissal and having done so it is incumbent on the company to comply with the requirement of section C 10(1) of the Code in regard to the nature of the written statement.

13 During the hearing of this matter we entertained grave doubts as to the adequacy of the reason given by the company for the employee's dismissal judged by the standard laid down in section C 10 (1) of the Code. In our view the company's reason for dismissal is far from precise. In fact, we are of the opinion it is so vague and so widely worded that it would be possible to make any number and various kinds of allegations thereunder; and so we sought to get the company's solicitor to be more specific as to the matters he intended to raise in support of the reason for dismissal set out in Exhibit N.M. 5.

14 In our opinion this is essentially a case in which the employee could reasonably have sought particulars of the reason for dismissal when he received the letter terminating his services with this company, and it is most unfortunate that he did not pursue this course. If he had done so, not only would it have clarified the issue with which we have to deal but it would have informed the employee at a very early stage of the particular nature of the allegations which the company intended to bring against him.

15 The solicitor for the company in reply to an inquiry by the court said that the facts pleaded in the company's memorandum in relation to the employee's dismissal all fall within the reason set out in the letter of dismissal. He further added that the company was relying on selection C 60 (1) (b) and (e) of the Code in justification of its contention that the employee's dismissal was not unfair. By reason of the statement of the company's solicitor that the company is relying on matters pleaded in its memorandum in order to justify the employee's dismissal, it is assumed that he is referring to matters specified in paragraph's 4 to 12 of the company's memorandum. These will be dealt with in detail at a later stage of this judgment, but it should be here observed that some of the matters pleaded were never put to the employee in cross-examination and some were not referred to in the examination in chief of Mr. Ikin, the only witness called for the company.

16 Reliance by the company on section C 60 (1) (b) of the Code

17 Section C 60 (1) of the Code contains five categories specified in paragraph's (a) to (e) into which the reason assigned by an employer for an employee's dismissal may fall, and the section provides that if the reason for dismissal falls within one or other of such categories, “a dismissal shall not be unfair.”

18 The company's solicitor has said that he proposes to rely on paragraphs (b) and (e) of the said section C 60 (1) of the Code, therefore if the company feels that it has a factual basis for the reason it has assigned for the employee's dismissal it must prove such reason to the satisfaction of the court. The material portion of section C 60 (1) on which the company relies reads:

“C 60 (1) A dismissal shall not be unfair if the reason assigned by the employer therefore –

• (b) relates to the capability or qualifications of the employee to perform work of the kind he was employed to do, within the limitations of section C 61 (3)

• (e) is some other substantial reason of a kind which would entitle a reasonable employer to dismiss an employee holding the position which the employee holding the position which the employee held.

Provided, however, that there is factual basis for the assigned reason”.

19 In regard to paragraph (b) of this section, it will be noticed that the reason mentioned therein relates to the “capability or qualifications” of an employee to do the work he was employed to perform.

20 In Selwyn's Law of Employment the author at page 117 paragraph 8.31 defines “capability” and “qualifications” (when discussing the reason for dismissal of an employee) as contained in paragraph 6 (2) (a) of schedule 1 to the United Kingdom Trade Union and Labour Relations Act (1974). This paragraph of the United Kingdom Act corresponds to paragraph (b) of section C 60 (1) of the Code

21 In this context the author says:

“‘Capability’ includes any assessment by reference to skill, aptitude, health or other physical or mental quality and ‘qualifications’ means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee holds.”

22 In the absence of any definition of the words “capability” and “qualifications” in the code the Code we accept adopt these mentioned above as they appear to us to be suitable and satisfactory.

23 The employee's qualification have not been questioned and this being the case of the company's reliance on paragraph (b) of section C 60 (1) of the Code must of necessity be confined to the question of the employee's “capability” to perform the work of manager of the company's aerated water factory. However, in relying on this paragraph the company must observe the conditions laid down in section C 61 (3) of the Code, which is applicable “where an employee is no longer performing his in a...