Stacey King-Martin v Financial Services Regulatory Commission

• Jurisdiction: Antigua and Barbuda
• Judge: Brown, P
• Judgment Date: 27 November 2020
• Docket Number: REFERENCE NO. 18 of 2018
• Court: Industrial Court (Antigua)

Between:

Stacey King-Martin

Employee

and

Financial Services Regulatory Commission

Employer

Before:

The Hon. Charlesworth O.D. Brown President

The Hon. Judith Dublin Member

REFERENCE NO. 18 of 2018

IN THE INDUSTRIAL COURT

Appearances:

Mr. Septimus A. Rhudd of Rhudd & Associates, Attorneys-at-Law for the Employees

Dr. David Dorsett, Ph.D. of Watt, Dorsett, Hewlett Law, Attorneys-at-Law for the Employer

DECISION

Brown, P

Introduction

1 These proceedings were commenced by a Notice of Reference filed on April 12, 2018. In accordance with the provisions of the Industrial Court Procedure Rules 1980, it referred to the existence of a trade dispute between the parties under section 19 of the Industrial Court Act, Cap. 214 (the Act). That commencement was an irregularity. Under Rule 12 of the Industrial Court Procedure Rules 2015 (the 2015 Rules), the commencement should have been by way of a Reference of Complaint pursuant to section 7 (1) (c) of the Act.

2 Rule 35 of the 2015 Rules follows Part 15 of the Civil Procedure Rules 2000 of the Eastern Caribbean Supreme Court, which is similar to Part 24 Civil Procedure Rules 1998 in the United Kingdom, in providing for the grant of summary judgment in cases where, on paper, one party has no real prospect of succeeding on a claim or the other party has no real prospect of successfully defending a claim. Thus, at first blush, an Employer may defeat an Employee's claim without a trial pursuant to Rule 35.

The Application

3 By its application filed on July 26, 2018 the Employer applied for an order that summary judgment be entered in its favour. In asserting that the Employee has no real prospect of success, the Employer relies on the following grounds:

• (a) Having stated that constructive dismissal is the issue in dispute, the Employee has not alleged or otherwise shown that there was a repudiatory breach of the employment contract.

• (b) If there was a repudiatory breach, which the Employer denies, the Employee subsequently affirmed the employment contract.

4 The application is supported by a short affidavit sworn by the Employer's Chief Executive Officer, Brenda Sheppard, in which she restated the grounds but did not elaborate on or give particulars of them. The affidavit did not include any details in respect of facts alleged in the Employee's Memorandum of Claim. Moreover, neither the Memorandum itself nor any of the eleven (11) supporting documents attached to it were exhibited with the affidavit.

The Employer's Submissions

5 In the introduction to his submissions, learned Counsel, Dr. Dorsett set out the chronology of events starting with the commencement of the Employee's employment in 1997 and culminating in February 2017 with the Employer's letter stating that it had “no choice but to accept that the Employee has terminated her employment.”

6 In advancing the Employer's case, Dr. Dorsett quoted Rule 35 as well as an excerpt from the headnote to Didier v Royal Caribbean Cruises Ltd (2016) 89 WIR 277 which laid down the “test” for the entry of summary judgment. In that excerpt it was emphasized that “that filing of affidavit evidence was a crucial part of the summary judgment procedure and formed the basis for the court's applications of the legal test for entry of summary judgment”. Further, it was stated that: “In disposing of the claim summarily, the court would essentially consider the legal issues in the case, determine, on the balance of probabilities and in light of the affidavit evidence addressed by the parties, whether one party or the other had no real prospect of succeeding on the claim and enter judgment accordingly.”

7 In his submission regarding the suitability of the summary judgment procedure Dr. Dorsett further quoted an excerpt from Wespac Building Corporation v. MM Kembla New Zealand Limited [2000] which was approved in Jones v AG [2003] UKPC 48 that: “Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and legal issues.”

8 The next leg of Dr. Dorsett's submission involved his emphasis on the “acid test” for constructive dismissal as stated by the Privy Council in Grewals (Maurituis) Ltd. V. Koo Seen Lin [2016] UKPC 11 at paragraph 15. That test requires the objective judgment of the employer's conduct to determine if he had in fact repudiated the contract.

9 Learned Counsel also referred to and quoted from the landmark judgment in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 the fountainhead for the settled law of constructive dismissal: Where the Employer is guilty of conduct going to the root of the...