Montserrat Allied Workers Union Appellant v Joan Ryan Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: MATTHEW, J.A.,Justice of Appeal [Ag.],Chief Justice [Ag.],ALBERT J. REDHEAD
• Judgment Date: 11 November 1996
• Judgment citation (vLex): [1996] ECSC J1111-1
• Docket Number: TRADE DISPUTE 1 OF 1995
• Date: 11 November 1996

Between:

Montserrat Allied Workers Union

Appellant

and

Joan Ryan

Respondent

[1996] ECSC J1111-1

Before:

The Hon. Mr. C.M. Dennis Byron Chief Justice [Ag.]

The Hon. Mr. Albert J. Redhead Justice of Appeal [Ag.]

The Hon. Mr. Albert N.J. Matthew Justice of Appeal [Ag.]

TRADE DISPUTE 1 OF 1995

IN THE COURT OF APPEAL

Industrial Law— Unfair dismissal — Award of compensation by Labour Tribunal — Whether respondent in fact guilty of gross misconduct — Whether Union President competent to dismiss respondent — Employment Ordinance. Appeal dismissed.

Appearances:

Mr. K. Allen, Q.C. for the Appellant

Mr. D. Brandt for the Respondent

1 MATTHEW, J.A. [AG.]

2 Mrs. Joan Ryan was in the employment of the Montserrat Allied Workers Union which was formed in 1973 as an Executive Secretary for the period October 1,1990 to July 2,1992 when she was dismissed by the President of the Union, Mr. Charles Nick Ryan for alleged gross misconduct. The gross misconduct referred to centred around two letters written by Mrs. Ryan, one to the President and another to the General Secretary complaining of irregularities by the General Secretary. During Mrs. Ryan's employment her immediate supervisor was Mrs. Vereen Thomas Woolcock, the General Secretary of the Union.

3 The Labour Tribunal established by Section 36 of the Employment Ordinance, No.19 of 1979, on April 10, 1995 found that Mrs, Ryan was unfairly dismissed and awarded her compensation in the sum of $15,394.00.

4 The Appellant was not satisfied with the decision of the Tribunal and in accordance with Section 41 of the said Employment Ordinance appealed by way of case stated from the decision of the Tribunal to this Court.

5 Learned Counsel for the Appellant in his presentation of the Appellant's case filed on August 8, 1995 stated that the four questions to be determined are as follows:

1

Whether the writing and publishing of the two letters together with the conduct of the Respondent prior to the writing and publishing of the said letters all of which are admitted by the Respondent amounted to gross misconduct and if so whether it was incumbent on the Tribunal to so state. 2. Whether in all the circumstances of the case the President of the Montserrat Allied Workers Union was competent to dismiss the Respondent in the way that he did. 3. If the Respondent is guilty of gross misconduct and the President was not competent to dismiss her [and the Appellant contends otherwise] whether in the light of such conduct the Respondent is entitled to the award which was made. 4. Whether the Tribunal by their finding understand or appreciate the meaning of unfair dismissal.

6 Before this Court learned Counsel for the Appellant read in full two rather lengthy letters written by the Respondent, one dated June 15, 1992 to the President and copied to the General Secretary and the members of the Executive Committee of the Union and another dated June 17, 1992 to the General Secretary and copied to the President and the members of the Executive Committee.

7 Counsel submitted that the letters were rude, vicious, scandalous and unbecoming of an Executive Secretary. Counsel further submitted that the writing of these letters and the circulation of them to a select group within the Executive Committee of the Union amounted to gross misconduct and therefore the Respondent was not dismissed unfairly.

8 Counsel made reference to Section 12 of the Employment Ordinance which deals with compensation for dismissal and in particular to sub-section [1] and paragraphs [b] and [d] of subsection [2].

9 Counsel also made reference to the Constitution of the Union and in particular to Rule 8[6] [d] and submitted that nothing in that provision says that the President could not dismiss the Respondent, and it was common sense that the head of an organisation must be able to dismiss an employee.

10 Learned Counsel for the Respondent made extensive reference to the Constitution of the Union. He referred to Rule 5[1] which vests the supreme authority of the Union in the Annual General Conference and to Rule 8[1] which places the government of the Union in the Executive Committee in the periods between Annual Conferences.

11 He also referred to three other paragraphs of Rule 8. Paragraph 2 states the composition of the Executive Committee to be the President, three Vice Presidents, General Secretary, Treasurer, and seven members elected by the Annual Conference. Paragraph 5 states that the Executive Committee shall give instructions to the General Secretary and the other officers of the Union. Paragraph 10 states that the decisions of the Executive Committee shall be binding on all members of the Union.

12 Counsel submitted that Joan Ryan in her letters was not making spurious allegations but specific complaints and she brought witnesses in support of her allegations and the Tribunal believed her.

13 Counsel submitted that the President upon receiving those complaints should have commended her rather than dismiss her despite a decision of the Executive to the contrary.

14 After hearing the submissions of Counsel we dismissed the appeal and indicated that we would reduce our reasons into writing. I shall proceed to do just that.

15 Section 12 of the Employment Ordinance, No.19 of 1979, is as follows:

"[1] From the date this Part of this Ordinance comes into force any employee who has been continuously employed by an employer for thirteen weeks or more and who is dismissed by his employer for any reason other than one or more of the reasons specified in sub-section [2] of this section shall be entitled to compensation as assessed by the Tribunal.

[2] The reasons for dismissal which shall not give rise to a right to compensation are:

• [a] the incapability of the employee to do the work he is employed to do;

• [b] misconduct: provided that no employee shall be dismissed for a first breach of discipline except in the case of gross misconduct;

• [c] subject to the provisions of Section 16 of this Ordinance, where the employee is redundant;

• [d] any other reason which in the opinion of the Tribunal makes it unreasonable for the employer to continue the employer — employee relationship.

16 It is clear that the Appellant is relying principally on the provision of paragraph [b] of sub-section [2] of section 12 and to a lesser extent on paragraph [d] of the said sub-section.

17 The President of the Union in his letter of dismissal stated that he was doing so because of the two letters already referred to above written by the Respondent. He said the same thing when he gave evidence before the Tribunal.

18 It therefore becomes imperative to make an assessment of the letters. I could not possibly refer to everything in the letters. They are very detailed...