Spencer v Blue Waters Hotel

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Lewis, P.
• Judgment Date: 05 August 1977
• Docket Number: No. 7 of 1977
• Date: 05 August 1977

Industrial Court

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

No. 7 of 1977

Spencer

and

Blue Waters Hotel

Appearances:

Antigua Workers' Union ( D. Halstead) for employee

Antigua Employers Federation and F.E. Kelsick, Solicitor for employer

Labour Law - Termination of Employment — Dismissal.

1 Lewis, P. delivered the ruling on the preliminary objections:

2 The preliminary objection in paragraph 1(a) of the respondent's memorandum which states that the Industrial Court has no jurisdiction to entertain this trade dispute which has been referred to it reads as follows:

“The purported reference of 15 ^th April, 1977 by the claimant is out of time having regard to section 19, sub-section (2) of the Industrial Court Act No.4 of 1976.”

3 On behalf of the respondent it was submitted that there is a time limit when a party to a dispute which has been referred to the Labour Commissioner can seek to bring that dispute before the court, that time limit is then days; there is noting in the claimant's memorandum or in the reference to the court that shows that this dispute comes within the limits of the act; section 19(2) of the Industrial Court Act No.4 of 1976 requires a party to refer a matter to the court within ten (10) days after failure to reach a settlement by the Labour Commissioner; it is for the party referring to the dispute to the court to show in his memorandum that the dispute had been brought before the court within the time specified in section 19(2) of the Industrial Court Act.

4 The Solicitor for the claimant disagreed with this view and stated that party cannot make a reference to the court while the Labour Commissioner is considering the dispute and that the Labour Commissioner had then days within which to settle the dispute, but if he failed to do so within the prescribed ten day period then a party to the dispute may refer the matter to the court at any time thereafter. We agree with the view put forward by the claimant's Solicitor that the ten (10) day period mentioned in section 19(2) of the Industrial Court Act, 1976 refers to the period within which the Labour Commissioner should settle the dispute, if he can. This court has already decided the same objection raised in paragraph 1(a) of the respondent's memorandum when the same argument was addressed to it by the same person in reference No.4 of 1977, LIAT [1974] Limited, claimant - employer and Arthur Thomas, respondent - employee. In that trade dispute this court gave its opinion as to the meaning of section 19(2) of the Industrial Court Act 4 of 1976, and said this:–

“What section 19(2) fo the act (i.e. the Industrial Court Act 4 of 1976) means is that two conditions precedent must be satisfied before the jurisdiction of the Labour Commissioner can be ousted and these are (a) a trade dispute must have come to his attention, and (b) within ten days after it had come to his attention he must have failed to achieve a voluntary adjustment or settlement thereof. If these conditions are not satisfied then either party may refer the matter to this court. We wish to emphasise that this ten-day-period has no connection whatever with the time within which a reference may be made by a party to this court under section 19(2) of the act; but once a reference has been made the power of the Minister to deal with the matter has come to an end, the authority of the Labour Commissioner has ceased and the modifications in the procedure set out in the code for dealing with trade disputes as introduced by section 19 of the act take effect. In other words after the Labour Commissioner has failed to effect a settlement within the time prescribed by section 19(2) of the act, the next step is with a party who may refer the matter to the court at anytime thereafter.”

5 The court now wishes to re-emphasise what it said in references No.4 of 1977 in connection with section 19(2) of the act. That statement equally applies to the objection contained in paragraph 1(a) of the respondent's memorandum which is accordingly overruled.

6 The second objection to the court's jurisdiction is contained in paragraph 1(b) of the respondent's memorandum and reads as follows:–

“The dispute having being referred to the Minister by the Labour Commissioner in accordance with sub-section (2) of section C63 of this Labour Code No.14 of 1975, and the Minister having exercised his authority by referring the dispute for formal handling by a hearing officer, it was no longer open for the dispute to be referred to the court.”

7 In support of his memorandumIn support of his memorandum In support of his memorandum the respondent submitted three documents which are referred to in paragraph 2 of the memorandum and marked AWU-1, AWU-2 and AWU-3. Rule 11 of the Industrial Court (Procedure) Rules, S.R.O. 24 of 1976 requires that documents which are submitted by a party if the original is not available a certified or photostat copy of the original. The documents submitted with the respondent's memorandum did not conform with the requirements of this rule in that they were not originals nor were they certified or photostat copies of the originals. Moreover, the documents in question did not bear proper identification marks as required by the circular letter issued from the Registry of the court dated June 17 ^th, 1977 a copy of which was sent to the employee's representative and which requires that documents attached to a memorandum by a respondent should bear the letters ARES”, followed by a number. Further, the documents marked AWU-2 and AWU-3 referred to section C Part 5” which is an ambiguous statement in that the section number is not mentioned.

8 The record of the court shows as follows:–

9 (a) The defective documents were returned to the employee's duly authorised representative by the Registrar under cover of a letter dated 23 ^rd June, 1977. This letter reads as follows:–

June 23 ^rd, 1977.

“Mr. Donald Halstead,

c/o Antigua Workers' Union.

Newgate Street,

St. John's

Antigua.

Dear Sir,

Reference No.7 of 1977

Returned herewith are exhibits AWU-1, 2 and 3 for proper identification as indicated in my letter to you of 17 ^th June, 1977.

We note that documents submitted in support of your memorandum are not in keeping with rule 11 of the Industrial Court (Procedure) Rules, 1978 in that the documents are not certified.

Further in both exhibits AWU 2 and 3, “Section C part 5” is not understood, in that the section number is not mentioned.

Yours truly,

J. Hill (sgd.)

Ag. Registrar.

JH/jn

Enclosures 3:

10 (b) The employee's duly authorised representative in reply wrote the following letter to the Registrar of the court:–

27 ^th June, 1977.

“Mrs. J. Hill,

Ag. Registrar,

Industrial Court of Antigua,

Parliament Chambers,

St. John's,

11 Reference #7 of 1977

Madam:

The trouble imposed on litigants by the rules of the court requesting photostat or originals of documents, seem designed to frustrate efforts in obtaining the just determination of matters in an expeditious manner. Photostats should only be demanded if the other party deny the existence of the particular document.

In the circumstances, my Lord President, of the court would be well advised to modify the rules.

Very truly yours,

Donald Halstead (sgd.)

Labour Consultant”

c.c. C. Cumberbatch Esq.

S.P. Christian Esq.

12 (c) On July 18 ^th the Registrar of the court wrote the following letter to the employee's representative:

July 18 ^th, 1977.

“Mr. Donald Halstead

c/o Antigua Workers' Union

Newgate Street

St. John's

Antigua

Mr. Halstead,

Reference No.7 of 1977

Between

Maurice Spencer - Respondent

And

Blue Waters Hotel - Claimant

I refer to my letter to you of June 23 ^rd, 1977 re the above matter in which I returned exhibits for amendment and proper identification.

I note that these have not been amended and returned to the court although they have been in your possession since 23 ^rd June, 1977.

In view of the above, I hereby request you to return the relative documents to the court immediately. Whether they have been amended or not, as the court cannot allow documents which are intended to form part of the court record to be in the possession of a party.

Any objections as regards to documents which are to be submitted to the court will be dealt with at the trial.

Yours truly,

J. Hill (sgd)

Ag. Registrar.

JH/jn

13 The representative of the respondent having admitted that he has not returned to the court the documents which were sent to him by the Registrar for correction, and having stated that he could not find the documents, the court ruled that the respondent could not rely on these documents...