Stephen R Mendes v Antigua Workers Union

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Lewis, P.
• Judgment Date: 24 April 1978
• Docket Number: No. 11 of 1977
• Date: 24 April 1978

Industrial Court

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

No. 11 of 1977

Stephen R. Mendes

and

Antigua Workers Union

Appearances:

T.H. Kendall, Solicitor and Antigua Employers' Federation ( C. Cumberbatch) for employer/claimant

Antigua Workers' Union ( D. Halstead) for employee/respondent.

Labour Law - Industrial dispute — Strike action — Remuneration during strike.

Labour Law - Industrial dispute — Removal of manager.

Industrial law - Go-slow by company's stevedores at instance of trade union — Action in breach of section 20(1) of the Industrial Court Act.

Introductory:

Lewis, P.

1 Stephen R. Mendes (Antigua) Ltd., the claimant in this matter, is a limited liability company (hereinafter called “the company”) carrying on, among other things, the business of a shipping agent in this State.

2 The company employs a number of stevedores whose duty it is to unload cargo destined for consignees in the State and arriving here in ships for which the company is agent.

3 The respondent union (referred to hereinafter as “the union”) is the bargaining agent for the company's stevedores and has entered into a collective agreement on their behalf with the company. This agreement is referred to in paragraph 7 of the letter of 4 ^th July, 1977 (exhibit C.L.A.3) written by the General Secretary of the union to the General Manager of the company and is exhibited to the company's memorandum as appendix No.8.

4 The company, acting under the provisions of section 19(2) of the Industrial Court Act 4/1976 notified the court that a trade dispute existed between itself and the union, and by a reference dated and filed 19 ^th July, 1977 referred the said dispute to this court for determination. In its reference, the company stated that the issues in dispute between it and the union are:–

• “1. The Antigua Workers' Union is demanding the removal from all duties at the Deep Water Harbour of Mr. Dunstan Norde, who is presently employed as Shipping Department Manager by Stephen R. Mendes (Antigua) Ltd.”

• A2. The Antigua Workers' Union is demanding that these stevedores that worked the “Atlantic Sun” on 30 ^th June, 1977 and the “Booker Viking” on 1 ^st July, 1977 be paid in full for those hours in over-time when the ships were worked by other persons engaged by the Antigua Port Authority for this purpose.”

Industrial Court (Procedure) Rules

5 Rule 6(1) of the Industrial Court (Procedure) Rules S.R.O. 24/1976 (hereinafter referred to as “the rules”) reads as follows:–

• “6 (1) Each party to a reference shall within such period as the President may direct, not being less than seven days after the date of such direction, present to the court a memorandum setting out -

  • (1) in the case of the claimant party the nature and full particulars of item of the claim involved in the reference;

  • (2) in the case of the respondent party, such reply as it may which to give to the items of claim raised in the claimant's memorandum;

  And shall forthwith serve upon the other party a true copy thereof.”

6 In compliance with this rule the company filed its memorandum on 4 ^th August, 1977. This memorandum, in accordance with rule 6(1)(a) of the rules sets out “the nature and full particulars of each item of claim involved in the reference” and was served on the union. The union knew from the very onset of these proceedings what case the company intended to put forward, but the company on the other hand has never had any information of the case which the union intended to set up.

7 The union was directed by the President of the court to file its reply to the company memorandum within 10 days after receiving its copy of the company's memorandum. The union did not file its reply within the prescribed period, and on the 19 ^th August, 1977 it applied under the new rule 7 of the rules as inserted by S.R.O. 6 of 1977, for an extension of time within which to file its reply. When this application was heard on the 29 ^th August, 1977 the duly authorised representative of the union made it abundantly clear that he intended that he intended to rely on the memorandum in the form in which it is filed. This point is being stressed, because, as will be shown hereafter, it indicated that very early in this matter the union never intended to reply to the facts alleged in the company's memorandum, or to disclose its case to company.

8 It should be stated here and now that the memorandum filed by the union in reply to the company's memorandum consisted of two preliminary legal objections only and they challenged the jurisdiction of the court. Thus, the union's memorandum completely ignored the facts stated in the company's memorandum.

9 On 7 ^th February, 1978 the preliminary objections were heard. One of them was not argued and so, no further mention need be made of it. The other questioned the constitutionality of the Industrial Court Act under which this court is established. The court ruled that it would assume that this act was constitutional until it was otherwise decided by the High Court, and accordingly set down this reference for hearing on 3 ^rd Marcy, 1978. In the meantime a judgment of the High Court delivered on 14 ^th February, 1978 in Miscellaneous Suit No.35/1977 Neal Farrel v Attorney General of Antigua, Bishop J. held that the Industrial Court Act was constitutional and, accordingly, the court decided to decided to proceed with the hearing it had fixed for 3 ^rd March, 1978.

10 The union did not in fact file a reply “to the items of the claim raised in the claimant's memorandum” as required by rule 6(1)(b) of the rules. This was clearly no oversight on the union's part, but a deliberate act of refusal to comply with this rule. As a result of this situation, the court, at the commencement of the hearing on March 3 ^rd, 1978 invited arguments as to how the failure of the union to reply to the items of claim in the company's memorandum would effect on behalf of the parties, the court ruled that the failure of the union to traverse the allegations of fact contained in the company's memorandum meant that the union must be deemed to have admitted the said facts and, as a consequence, it could not introduce any evidence in chief, to contradict those facts. The court also held that the union could not in cross-examination of the company's witnesses put to the witnesses any facts constituting its won case (if any) because the union's case should have been put forward in its memorandum in reply as the company was entitled to know before the hearing what case the union intended to put forward so as to be able to meet it.

11 In the light of the union's deliberate default in complying with rule 6(1)(b) of the rules, the court was somewhat surprised to observe the attitude adopted by its duly authorised representative. His behaviour was similar to that of a person who had suffered some grievous wrong and be remedied; and far from admitting that he was the author of the embarrassing situation in which the union now found itself, he went so far as to submit that he was entitled to disclose the union's case for the first time even after the company had closed its own case, and he contended that this was something which was frequently done. This court is not aware of any rule of procedure which permits a person in the position of a defendant (as the union is in this case) to keep its defence a secret and spring it on a plaintiff at the last moment when the plaintiff has already completed it won case.

12 On behalf of the union it was submitted that the court should review the decision which it had just given as to the manner in which the hearing should be conducted, and that it should permit “the issues to be tried as widely as possible”. Mr. Kendall for the company said that he had difficulty in understanding these submissions made by the duly authorised representative of the union, and so too did the court. The court could not possibly agree that it should stultify itself to go back on a ruling it refused the application made on the union's behalf to review its first ruling.

13 Quite clearly the union's duly authorised representative is convinced that he can ignore the provisions of the rules and claim as of right to be treated as though he had not.

14 After the rulings were given the union's duly authorised representative was dissatisfied therewith, and withdrew from the proceedings.

15 Union's demand for Mr. Norde's dismissal.

16 Mr. Dustan Norde is the company's Shipping Manager. On 6 ^th July, 1977 the union demanded his dismissal. The demand is referred to in paragraph 12 of the company's memorandum. By virtue of our first ruling on 3 ^rd March, 1978 the union must be deemed to have admitted that it made this demand and cannot be heard to say that it did not. However, even though the union is unable to deny making this demand it has not put forward any plea in justification thereof.

17 The company's General Manager, describing the union's demand as “ludicrous and unjustified” emphatically rejected it. The demand therefore failed to be established by proof in the usual manner, and the burden or justifying its demand lay on the union. In the absence of any plea of justification and any evidence in support thereof the union's demand would ordinarily fail for lack of proof. The company however, does not wish to avail itself of any advantage which may be gained from any default on the part of the union and has, quite properly, undertaken to prove not only that the demand was made but also that the reason allegedly given by the union for making it was factually without foundation and misconceived.

18 The General Manager of the company said in his evidence that on 6 ^th July, 1977 there was a meeting at his office between Mr. Keithlyn Smith (referred to in several of the exhibits as the General Secretary of the union) and Mr. Baldwin Spencer, representing the union,...