Tonge v St. James Club (Antigua) Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | H.S.R. Moe. |
| Judgment Date | 05 July 1991 |
| Court | Industrial Court (Antigua) |
| Docket Number | No. 14 of 1990 |
| Date | 05 July 1991 |
Industrial Court
Moe, P.
No. 14 of 1990
Senator The Hon. S.C.O Benjamin, M.P., solicitor for employee
T. H. Kendall, Esq., O.H. Q.C.; with Mrs. E. P. Simon-Forde, solicitors for the employer.
Industrial law - Unfair dismissal — Claim for compensation for unfair dismissal — Whether or not there was a genuine redundancy situation — Court was satisfied that such a situation existed — Whether the employer acted reasonably in dismissing the employee — Court found that the employer had acted reasonably in paying the employee $19,311.80 and vacation pay of $743.34.
On 22 nd May 1990 the Employee's Solicitor filed notification of the dispute in the court, and on 23 rd May 1990 he filed the Employee's Memorandum wherein he claimed inter alia compensation and/or damages for unfair and/or unlawful dismissal. It was not until 31 st August 1990 that the Employer's Solicitors filed their memorandum in which they contended that the employee was fairly dismissed on the grounds of redundancy.
At the hearing a number of documents marked Exhibits A _ II were admitted into evidence and oral evidence was given by the employee in his own behalf while on behalf of the employer oral testimonies were given by Mrs. Mona Quintyne Director of Personnel and Training, St. James' Club and Mr. William Francis, Food and Beverage Director of St. James' Club.
The employer, (hereinafter referred to as “The Club”) is a limited liability company registered under the Laws of Antigua and Barbuda and carries on business at Mamora Bay under the trade name of St. James's Club. Peter Tonge, the employee/claimant, was at all material times employed by the Club as Bar Supervisor.
Prior to his purported retrenchment effective from the 28 th February 1989, the terms of which are contained in a letter dated the 30 th of January 1989, the employee had been employed by the club from November 1984. His last annual salary was $40,000.00 per annum. During the term of his employment with the club the employee received certain promotions the last of which was on April 15 th 1985. On the 24 th April 1988 an assessment by the club of the employee's performance revealed that the overall performance of his job junction was marked “Very Good.” In a letter dated 30 th of January 1989 (see Exhibit D) the club purported to retrench the employees position within the club.
The issue in this case does not relate to the employees capabilities or qualifications but rather to his retrenchment. “retrenchment” appears in the Antigua Labour Code (A.L.C). “Section” C.3 in the interpretation of “redundancy”.In this connexion we would allude to what the Industrial Court (differently constituted) had stated in reference No.20 of 1988 Antigua Workers' Union v. Antigua Gases Limited I.C.R. (Antigua and Barbuda) at page 1 to 3 and we quote:–
“In section C.3 of the A.L.C redundancy is interpreted as follows:_ ‘redundancy’ means a situation in which, by virtue of a lack of customers orders, retrenchment, the installation of labour saving machinery, an employer's going out of business a force majeure or any other reason tasks which a person was last employed to perform no longer exists.”
“What this definition seems to contemplate therefore is that redundancy may occur as a result of retrenchment which itself is ordinarily defined as removing what is superfluous or reducing the amount or economising.”
Thus the situation can arise where the tasks or work still exist but the employer requires fewer employees or there is less work for existing employees as is demonstrated in Chapman v. Goonvean (1973) I.C.R. 310. Redundancy may also arise because the work has been reorganised thus requiring fewer employees to do the same work or it may be because of the introduction of labour_saving devices, (or if you prefer, the installation of labour_saving machinery). Thus a re-organisation which results in a reduced work_force is a redundancy as is shown in Carry All Motors Ltd. v. Pennington (1980) IRLR 455 E.A.T. A similar position was also taken in Robinson v. British Island Airways (1978) I.C.R. 304 E.A.T. It does not appear to us that the Industrial Court (differently constituted) in either of the references Kathleen Defreitas v. George B. Brysons No. 6 of 1977 and Edison Lewis & Ambrose v. U.S.A. Naval Facility No. 1 of 1979 had expressed any view on this aspect of redundancy.
“Nonetheless the mere fact that a genuine redundancy does exist does...
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