Montserrat Utilities Ltd v Kirwan

• Jurisdiction: Montserrat
• Judge: Carrington JA
• Judgment Date: 17 April 2015
• Neutral Citation: MS 2015 CA 1,[2015] ECSC J0417-3
• Docket Number: MNILTAP2013/0002
• Court: Court of Appeal (Montserrat)
• Date: 17 April 2015

Court of Appeal

Michel, J.A.; Chong, J.A. (Ag.); Carrington, J.A. (Ag.)

MNILTAP2013/0002

Montserrat Utilities Limited

and

Kirwan

Appearances:

Mr. Kenneth Allen, QC, with him, Ms. Chivonne Gerald for the appellant.

Mr. Sylvester Carrott for the respondent.

Employment Law - Dismissal — Medical grounds — Whether the employer failed to discharge the burden of proof that it acted reasonably in dismissing the employee — Finding that although there was confusion created by the respondent's doctor's reference to her working in an alternative environment, the employer had not clarified this before dismissing the respondent and as such made no effort to alleviate the situation thus acted unreasonably in dismissing the respondent.

Statute - Interpretation — Whether the proceedings initiated under the Employment Act can be continued under the Labour Code — Finding that it was consistent for the proceedings to be continued under the Code given that they substantially addressed unfair dismissal and the relevant redress — Finding that no issue of inconsistency between the repealed and current legislation arose.

Civil Practice and Procedure - Compensation — Heads of damages for unfair/unlawful dismissal under Labour Code — Whether tribunal erred in making an award of compensation — Finding that there was a failure by the Tribunal to consider the correct basis on which loss of retirement benefits may have occurred — Holding that award of pension and accrued interest and award for injury to feelings be disallowed and varied the award for loss of vacation pay.

On 30th November 2011, the respondent, Ms. Mildred Kirwan, was dismissed by her employer, the appellant, Montserrat Utilities Limited, on medical grounds after almost 32 ¹/₂ years of employment. On or about 6th November 2012, the respondent commenced proceedings before the Labour Tribunal (“the Tribunal”) to challenge her dismissal on the grounds that her dismissal was unlawful.

The application was heard by the Tribunal between 29th April and 2nd May 2013, and on 5th December 2013, the tribunal delivered its decision. The Tribunal found that the appellant's dismissal of the respondent was unfair and unlawful and awarded the respondent compensation in the form of a lump sum pension and accrued interest, loss of earnings from the date of dismissal to the date of determination of the dispute, injury to feelings, contributions to a pension fund and social security and holiday pay.

In reaching its decision, the Tribunal applied the provisions of the Labour Code, 2012 Act No. 20 of 2012, and not the provisions of the Employment Act, Cap. 15.03, Revised Laws of Montserrat 2002, which was in force at the time of the respondent's dismissal in November 2011 and the commencement of proceedings before the Tribunal in November 2012, but which had been repealed by the time the Tribunal had heard the matter in 2013.

The appellant challenged the Tribunal's decision and upon an application by the appellant, the Tribunal stated a case to the Court of Appeal asking the Court to determine whether it was wrong in law on three questions concerning the interpretation and application of the provisions of the Labour Code and Employment Act and any conflict or inconsistency arising between them, and a fourth question on whether the facts of the instant case were distinguishable from that of the decision in the English case Coulson v. Felixstowe & Dock & Railway Company [1974] I.R.L.R. 11. The appeal first came up for hearing before the Court in June 2014 and the Court, exercising its case management powers, directed that a fifth question be stated involving the matters of statutory interpretation and the appropriate heads of damages for unfair/unlawful dismissal under the Labour Code.

Held: agreeing with the conclusions reached by the Tribunal with respect to questions 1 to 4 of the case stated; with respect to question 5, varying the award of the Tribunal by disallowing the award of the pension and accrued interest and the award for injury to feelings and varying the award for loss of vacation pay; and ordering that the parties bear their own costs, that:

• 1. The provisions of the Labour Code, in respect of the unfair termination of employment and the seeking of remedies therefor, deals with matters that had previously been the subject of the Employment Act. The effect of the repeal of the Employment Act and its substitution with the Labour Code was, firstly, that the provisions of the Employment Act ceased to have effect save as provided by section 71 of the Interpretation Act or the Labour Code as the repealing Act. Secondly, on the facts of the instant case, the proceedings commenced by the respondent before the Labour Tribunal in November 2012 and any accrued right of the respondent or obligation of the appellant under the Employment Act continued to have effect notwithstanding its repeal. No question of the retrospective operation of the Labour Code therefore arises.

• Section 187(2) of the Labour Code applied; Sections 71 and 72 of the Interpretation Act applied;

• 2. It was consistent with the Labour Code that the proceedings initiated by the respondent under the Employment Act be continued under the Labour Code as both the Employment Act and the Code provided for the right of an employee not to be unfairly dismissed and for access to the Labour Tribunal for redress where there was an allegation of unfair dismissal and both provided for an obligation of an employer to pay compensation where they failed to discharge the onus to prove that the dismissal was in accordance with the legislative provisions. In addition, the procedure under the Labour Code could be adapted in relation to matters under the Employment Act and the enforcement of rights and obligations under the Employment Act. In the instant case it does not appear that significant procedural steps took place under the Employment Act between the commencement of proceedings in November 2012 and the repeal of the Employment Act in December 2012, therefore no concern about the adaptation of the procedure under the Labour Code arises.

• Section 23(3) of the Labour Code applied.

• 3. The Labour Code requires a Tribunal to determine the fairness of the dismissal of any employee by an employer. In this appeal there was no reason to interfere with the conclusion of the Labour Tribunal on the fairness of the respondent's dismissal as the Tribunal properly directed itself on the law by considering the reasonableness of the actions taken by the employer in the circumstances to both the employer and the employee in determining whether the dismissal was fair. The Tribunal applied the ratio of J Coulson v. Felixstowe Dock Railway Co to the facts of the present case and were correct in distinguishing the decision reached in the J Coulson case on different facts.

• J Coulson v. Felixstowe Dock Railway Co [1974] I.R.L.R. 11 applied.

• 4. Given the wide discretion vested in the Labour Tribunal under section 27 of the Labour Code, the consideration of gratuity and ipso facto a retirement benefit as part of the compensation due for unfair dismissal cannot be ruled out. However, the onus must be on the dismissed employee to prove the loss suffered as a result of the dismissal. If the employee can satisfy the Tribunal that as a result of the dismissal which has been determined unfair, that he/she lost a retirement benefit, it should be in the interests of the parties and the community as a whole to have the employee compensated for the loss of this benefit. In this appeal, the obligation to pay the respondent's retirement benefit was not the obligation of the appellant but that of a fund operated by a third party. It could not be fair and just to make the award against the appellant unless it could be established that by reason of the dismissal the appellant had caused any loss of such entitlement, or possibly, where fairness and the substantial merits of the matter demanded that the appellant should make such payment initially with provision to recoup such payment from the fund. In the circumstances, the respondent did not discharge the onus on her to prove that she lost the retirement benefit as a result of her dismissal.

• Section 27 of the Labour Code applied; Antigua Village Condo Corporation v. Jennifer Watt ANUHCVAP1992/0006 considered.

• 5. Section 68(2)(b) of the Labour Code permits a Labour Tribunal to take into account, inter alia, earnings lost by the employee on account of the dispute up to the date of determination of the issue by the Tribunal. However, this loss is recoverable subject to the employee's duty to mitigate such loss. Mitigation involves consideration of the steps taken to obtain alternative employment by the employee and, in principle, the length of time that the employee spends in bringing and prosecuting his or her claim. The onus of proof of failure to mitigate lies on a defendant and if a defendant intends to contend that a claimant has failed to act reasonably to mitigate his or her damage, notice of such contention should be pleaded or otherwise notice of the intention to take that point should clearly be given to the claimant in a timely manner before the hearing to enable the claimant to prepare to meet this issue.. In the present case, the appellant gave no notice to the respondent of its intention to take a point of mitigation and adduced no evidence to address the issue before the Tribunal. Accordingly, the appellant did not discharge the onus on it to prove that there had been unreasonable inaction on the part of the respondent in failing to commence the claim before the Labour Tribunal in November 2012, or that the respondent was responsible for the length of time the proceedings took. Consequently, there was no basis on which to interfere with the Tribunal's award for loss of income.

• Antigua Village Condo Corporation v. Jennifer Watt ANUHCVAP...