Captain Joseph J. Moxey v Bahamasair Holdings Ltd
| Jurisdiction | Bahamas |
| Court | Supreme Court (Bahamas) |
| Judge | Madam Justice Deborah Fraser |
| Judgment Date | 31 May 2023 |
| Docket Number | 2023/COM/lab/00010 |
IN THE MATTER OF Bahamas Airline Pilots Association Industrial Agreement (2018)
and
Her Ladyship The Honourable Madam Justice Deborah Fraser
2023/COM/lab/00010
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
COMMERCIAL DIVISION
Application to set aside injunction — Rule 11.18 of the Supreme Court Civil Procedure Rules, 2022 — Rule 11.20 of the Supreme Court Civil Procedure Rules, 2022 — Material Non — Disclosure — Serious question to be tried — Balance of Convenience — Adequacy of Damages — Special Factors to be considered
Mr. Charles Mackay for Captain Joseph J. Moxey
Mr. Ferron J.M. Bethell K.C. with Ms. Camille A. Cleare for Bahamasair Holdings Limited
Mr. Raynard Rigby K.C. for Bahamas Airline Pilots Association
This is an application brought by the First Defendant to set aside an order made by this Court on 01 March 2023.
The Claimant, Captain Joseph J. Moxey (“ Captain Moxey”) was a pilot and In House Counsel for the First Defendant, Bahamasair Holdings Limited (“ BHL”). He was also a past president of the Second Defendant, Bahamas Airline Pilots Association (“ BAPA”), but presently inactive as a member.
BHL is a company incorporated under the laws of the Commonwealth of The Bahamas and carrying on the business of commercial air transport, both domestic and international, and the employer of Captain Moxey.
BAPA is a duly registered trade union in the said Commonwealth and the bargaining agent for all employees of BHL.
By an Industrial Agreement dated 01 January 2018 between BHL and BAPA (“ IA”), BHL and BAPA agreed to certain terms and conditions for, inter alia, better safety at work conditions and employment benefits for the employees of BHL.
Article 26.1 and 33.1 of the IA provide:
“26.1 Normal retirement age shall be sixty (60) years of age…
33.1 Should any article, part or provision of this Agreement be rendered invalid by review of any existing or subsequently enacted legislation, such invalidation of any article, part or provision of this contract shall not invalidate the remaining portions and they shall remain in full force and effect.”
By email dated 16 November 2022, Captain Moxey informed the Director of Flight Operations, Managing Director and Deputy Managing Director of BHL that the mandatory age of retirement was purportedly raised from sixty (60) to Sixty-five (65) by virtue of the newly enacted Civil Aviation Act, 2021 and its Regulations - particularly, Regulation LIC 070(b).
Regulation LIC 070(b) reads:
“Age 65. The holder of a pilot licence who has attained the age of 65 years shall not act as a pilot of an aircraft engaged in international commercial air transport operations.”
Captain Moxey also alerted the HR Committee of the Board of Directors about this purported change on 25 November 2022 who allegedly stated that the matter was to be addressed at a meeting on 29 November 2022.
By letter dated 30 December 2022, BHL notified BAPA about the purported change in retirement age. On that same day, Captain Moxey was informed by the Manager of Training for BHL that his mandatory recurrent training would take place in February of 2023 and that Captain Moxey must pay his TSA clearance for the training session.
On 05 January 2023, however, an email from the Manager of Training was sent to Captain Moxey informing him that he was directed to remove Captain Moxey from the training session and that the initial notice was to be disregarded.
Captain Moxey immediately wrote back to the Manager of Training requesting the next available date for the training session, but he never received a response.
On 17 January 2023, Captain Moxey attained the age of Sixty (60). Captain Moxey claims that, if he does not receive the mandatory training by 28 February 2023, he will be disqualified from piloting. He was subsequently placed on vacation leave as at 13 February 2023 for four (4) weeks.
On 22 February 2023, Captain Moxey filed a Specially Indorsed Writ of Summons (“ Writ”) claiming that the Defendants did not adhere to sections 4 nor 6 of the Employment Act and that, as a result, breached his employment contract which resulted in damage and loss. He asked the Court for the following reliefs:
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(i) An injunction preventing the Defendant by its servants or agents from breaching the Industrial Agreement and Regulations and sections 4 and 6 of the Employment Act;
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(ii) A Declaration as to the effective date of Regulation LIC 070(b);
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(iii) An Order that the Plaintiff retains his currency by allowing the mandatory Regulatory recurrent training exercise scheduled for the end of February, 2023.
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(iv) Damages;
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(v) Costs; and
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(vi) Such further relief the Court deems just.
On 22 February 2023, Captain Moxey also filed an Ex-parte Summons, Supporting Affidavit and Certificate of Urgency requesting an injunction. On 01 March 2023, this Court granted the injunction (“ Injunction”) in the following terms:
“1. An Injunction is granted restraining the First Defendant and Second Defendant by their servants, agents or employees or otherwise from breaching the Civil Aviation Authority Act 2021 and Regulation LIC 070(b) which became effective 1st July, 2021 and which invalidated Article 26.1 of the Industrial Agreement (2018) as it pertains to the retirement age of the Plaintiff.
2. An Injunction is granted restraining the First Defendant by its servants, agents or employees or otherwise from breaching Sections 4 and 6 of the Employment Act 2021.
3. This Injunction is to remain in effect for a period of 3 months as of the date hereof.
4. The Defendants are at liberty [to] apply.”
On 08 March 2023, BHL filed a Summons and Affidavit requesting the Injunction be discharged.
The issue that this Court must decide is whether the Injunction ought to be set aside?
Whether the Injunction ought to be set aside?
By virtue of rules 11.18 and 11.20 of the Supreme Court Civil Procedure Rules, 2022 (“ CPR”) the Court is empowered to set aside or vary an injunction. Rule 11.18 (properly read) provides:
“11.18 Applications to set aside [or] vary an order……..made without notice.
(1) A respondent to whom notice of an application was not given may apply to the Court for any order made on the application to be set aside or varied and for the application to be dealt with again.
(2) A respondent must make such an application not more than fourteen days after the date on which the order was served on the respondent.
(3) An order made on an application of which notice was not given must contain a statement telling the respondent of the right to make an application under this rule, and the time within which it must be made.”
Rule 11.20 of the CPR (properly read) provides:
“11.20 Application to set aside [an order made in the] absence of [a] party.
(1) A party who was not present when an order was made may apply to set aside or vary the order.
(2) The application must be made not more than fourteen days after the date on which the order was served on the applicant.
(3) The application to set aside the order must be supported by evidence on affidavit showing —
(a) a good reason for failing to attend the hearing; and
(b) that it is likely that had the applicant attended some other order might have been made.”
Though there was no strict adherence to rules 11.18 (as the Injunction does not comply with rule 11.18(3)) BHL, did file its application to discharge the Injunction on 08 March 2023, which is within the fourteen day requirement to make such application.
The Court also wishes to note that, though BAPA is a party to these proceedings and has filed a separate application to discharge the Injunction on 15 March 2023, its counsel endorsed the submissions of BHL's counsel and thus made no formal presentation to this Court in relation to the present application.
In addition to the above mentioned powers I am imbued with pursuant to the CPR, the Court of Appeal in Sandy Port Homeowners Association Ltd v Bain BS 2015 CA 108 at paragraph 40 noted:
“40 it is well established that the Court also has an inherent jurisdiction to revoke an order given ex parte if it feels that it made its original order under a misapprehension upon new matters being drawn to its attention. Where an order is made by a judge ex parte the same judge, or another judge of co-ordinate jurisdiction has power to set aside the order after an inter partes hearing (emphasis...
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