Alexander Brown v Grand Bahama Power Company Ltd
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Evans, JA |
| Judgment Date | 09 October 2019 |
| Neutral Citation | BS 2019 CA 156 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp & CAIS No. 175 of 2017 |
| Date | 09 October 2019 |
IN THE COURT OF APPEAL
The Honorable Mr. Justice Isaacs, JA
The Honorable Mr. Justice Jones, JA
The Honorable Mr. Justice Evans, JA
SCCivApp & CAIS No. 175 of 2017
Mr. Maurice Glinton, QC, with Ms. Meryl Glinton, Counsel for Appellant
Mr. Robert Adams, Counsel for Respondent
Queirazza v Leday and Another SCCiv App no.112/2015 Mentioned
Singh v Dass [2019] EWCA Civ 360 Considered
Ferguson and another v Lignum Vitae Cay Ltd [2012] 2 BHS J. No 112 Applied
Bahamas Industrial Engineers Managerial and Supervisory Union v Grand Bahama Power Company Limited, Utilities and Allied Workers Management Union and the Ministry of Labour and Social Development 2010/Cle/gen/FP/00162 Considered
Civil Appeal — Employment Law — Industrial Agreement — Employment Act — Industrial Relations Act — Unfair Dismissal — Summary Dismissal
Alexander Brown, the appellant, was employed as an engineer by Grand Bahama Power Company Limited, the respondent company, from December 1990. In 2001 the appellant was promoted to position of project engineer. The appellant also became a member of the Bahamas Industrial Engineers Managerial and Supervisory Union. The terms of the appellant's employment with the respondent company were governed by a registered industrial agreement which had been established in 2000 and was valid for a period of 5 years between the Union and the respondent. By a letter dated 14 March 2011, the respondent terminated the appellant's employment ‘with notice’ and offered the appellant compensation. The appellant brought an action against the respondent claiming that he had been terminated without cause in breach of the terms of the registered industrial agreement and sought relief. The trial judge dismissed the action on the ground that the respondent failed to prove that the appellant dismissing him without cause was a breach of the 2000 registered industrial agreement. He appealed the decision.
Held : Appeal dismissed. Costs are to follow the event. Costs are to be taxed if not otherwise agreed.
It must be noted that the sole legal issue pleaded before the learned judge in the court below was that the appellant was unfairly terminated in breach of the registered industrial agreement. The appellant's pleadings never referred to summary dismissal or claimed any breach of the Employment Act. In any event even if summary dismissal had been pleaded to the court there was no evidence put forward to support the claim. Therefore, the learned judge could not have been distracted by placing her focus only on what was before her. It is significant that in this present case the appellant had clearly been given the opportunity to amend his pleadings and did not. As such, there is no requirement for the learned judge to direct her attention to matters that have not been pleaded and we have not been satisfied that we should exercise our discretion.
Reasons delivered by the Honourable
This is an appeal commenced by Notice of Appeal filed by the appellant on 11 August 2017, seeking an order setting aside the judgment of The Honorable Madam Justice Estelle Gray-Evans (“the learned judge”) delivered on 30 June 2017, inter alia, dismissing the appellant's action.
On 6 May, 2019, following the hearing of the substantive appeal, we dismissed the appeal and ordered costs to follow the event. We had promised to give reasons for our decision and do so now.
On 3 December 1990, the appellant commenced his employment with the respondent.
On 4 December 2000, the respondent entered into an Industrial Agreement (“the Agreement”) with the Bahamas Industrial Engineers Managerial and Supervisory Union (“the Union or BIEMSU”).
In 2001, the appellant was promoted to the position of engineer at which time he became a member of the Union. As a member of the Union, the terms and conditions of the appellant's employment with the respondent were governed by the provisions of the Agreement, so long as it remained in full force and legal effect. According to clause 14.1 of the Agreement, its provisions took effect on 1 January 2000 and it was scheduled to expire on 1 January 2005.
By letter dated 14 March 2011, the respondent terminated the appellant's employment ‘with notice’ and it offered the appellant compensation in the amount of $91,224.62 representing (i) payment in lieu of notice (ii) termination with notice pay (iii) vacation pay untaken/accrued and (iv) a pro-rated sum in respect of the appellant's Christmas bonus. In addition, the respondent informed the appellant that all monies contained in the appellant's saving plan at Commonwealth Bank would be made available to the appellant.
By specially indorsed Writ of Summons filed on 16 December 2011, the appellant commenced an action against the respondent in the court below seeking (i) payment in the amount of $48,020.90 and continuing (ii) reinstatement pursuant to clause 12.5 of the Agreement (iii) all benefits as per clauses 3.4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.1, 7.2, 8.1, 8.2,9.1, 9.5, 9.13, 10.1 and 10.3 of the Agreement to be assessed (iv) interest pursuant to the Civil Procedure (Award) of Interest Act, 1992 (v) costs and (vi) such further and other relief as the court deems just.
As the pleadings were of significance during submissions it is convenient to set out the statement of claim in full as follows:-
And the plaintiff claims:
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1. The defendant is a registered Company in the Commonwealth of the Bahamas and carrying on business as a supplier and distributor of electricity.
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2. The plaintiff began employment at the Grand Bahama Power Company formerly Freeport Power Company Limited on August II, 1980.
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3. From 1980 to 1990 the plaintiff as a plant operator, operated all areas of the power plant, steam, gas and diesel electric generating equipment.
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4. The plaintiff was promoted to the position of Project Engineer in 2002 and became a member of the Bahamas Industrial Engineers Managerial and Supervisory Union.
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5. The term of the plaintiff's employment are governed by a registered agreement between Grand Bahama Power Company and Bahamas Industrial Engineers Managerial and Supervisory Union.
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6. The said industrial agreement made no provision for termination without cause.
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7. That the industrial agreement is a registered agreement between Grand Bahama Power Company and the Bahamas Industrial Engineers Managerial and Supervisory Union of which the plaintiff is a members and a part of the bargaining unit.
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8. The plaintiff intends to rely on the said industrial agreement at the trial.
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9. The plaintiff was 48 years of age at the time of termination.
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10. The defendant breached the plaintiff's contract of employment by discontinuing to pay his wages and benefits from March 14, 2011 to present.
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11. By letter dated March 14, 2011 the defendant unfairly terminated the plaintiff in breach of the Industrial Agreement which contains the terms and conditions of employment of the plaintiff with no regard to the agreement and the terms therein in that the plaintiff was terminated without cause.
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12. By reason of the matters aforesaid the plaintiff has suffered loss and damage and has not been able to obtain employment.
PARTICULARS OF SPECIAL DAMAGES
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13. And the plaintiff claims reinstatement pursuant to clause 12.5 of the agreement from March 14, 2011 and be compensated for all time off the job with all pecuniary benefits.
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1. The total sum of Forty Eight Thousand & Twenty Dollars & Ninety Cents ($48,020.90), and continuing.
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2. Reinstatement pursuant to clause 12.5 of the industrial agreement.
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3. All benefits as per clauses 3.4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.1, 7.2, 8.1, 8.2, 9.1, 9.5, 9.13, 10.1, 10.3 of the said industrial agreement to be assessed.
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4. Interest pursuant to the Civil Procedure (Award) of Interest Act, 1992;
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5. Costs;
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6. Such further or other relief as the Court deems just.”
The respondent in its defence before the court below denied liability but specifically at paragraph 7 stated as follows:-
“As to paragraph 7 of the Statement of Claim is admitted. (sic) The defendant, however avers that the Industrial Agreement between Grand Bahama Power Company Limited and Bahamas Industrial Engineers Managerial and Supervisory Union has expired”.
The appellant in his statement of facts and issues identified the issues to be determined by the court as follows:-
“13. The issues to be determined are as follows:
(i) Whether the plaintiff was terminated without cause?
(ii) Whether the plaintiff was given sufficient notice, or pay in lieu of notice by the defendant?
(iii) Whether the plaintiff was terminated pursuant to the Registered Industrial Agreement?
(iv) If the plaintiff was terminated by the defendant without cause and insufficient notice or pay in lieu of notice can the plaintiff recover?”
The respondent in their Statement of Facts and Issues identified the issues for determination as follows:-
“8. The issues to be determined are as follows:
(i) Whether the Industrial Agreement was, in force, at the time the plaintiff was discharged by the defendant, as an employee, with notice?
(ii) Whether the defendant was prohibited, by the terms of the Industrial Agreement or otherwise, from discharging the plaintiff, as an employee, with notice?
(iii) Assuming the Industrial Agreement did not prohibit the defendant from discharging the plaintiff, as an employee, with notice did the defendant provide the plaintiff with reasonable compensation in lieu of notice?”
The trial of the appellant's action took place on 26 and 27 November 2015 and on 30 June 2017, the learned judge delivered her judgment dismissing the appellant's action against the...
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