Evangelistic Temple v Lauriette Lightfoot

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 14 October 2021
• Neutral Citation: BS 2021 CA 165
• Docket Number: IndTribApp. No. 47 of 2021
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

The Honourable Madam Justice Bethell, JA

IndTribApp. No. 47 of 2021

Between

Evangelistic Temple

Appellant

and

Lauriette Lightfoot

Respondent

APPEARANCES:

Mrs. Tara Archer-Glasgow with Mr. Keith Major for the Appellant

Mr. Rawson McDonald for the Respondent

Civil Appeal — Industrial Tribunal Appeal — Appeal by employer against finding of wrongful dismissal and award under section 29 of Employment Act — Whether Tribunal's failure to consider the evidence, identify crucial legal issues for its determination, or make findings of fact or of mixed fact and law constitutes an error of law — Tribunal's Decision unsupported by reasoning — Order for re-hearing — Section 64 Industrial Relations Act

On this appeal the appellant challenges a written Decision of the Industrial Tribunal handed down on 26 February, 2021 in which the Tribunal held that the appellant had unilaterally varied the respondent's written employment contract without her consent and that she had been wrongfully dismissed. The appellant further seeks to set aside the award by the Tribunal to the respondent of the net sum of $52,905.18 as compensation, calculated in accordance with section 29 of the Employment Act.

The respondent was employed by the appellant under a written contract of employment. The agreed terms were set out in a letter of offer, a copy of which was signed and returned to the appellant signaling her acceptance of its express terms. While the letter had attached her official job description and further set out her remuneration, pension and medical contributions, vacation entitlement and required working hours, it had been completely silent as to its duration or as to the age at which the respondent would be expected to retire.

After accepting the offer, the respondent assumed her employment with the appellant on 1 January 2005. Just over 10 years later, the respondent issued a general staff Memorandum to its non-pastoral staff (including the respondent) notifying them of the Church Board's decision to implement with immediate effect a mandatory retirement policy for non-pastoral staff upon their reaching the age of 65. The written Retirement Policy was attached for the “information and perusal” of staff.

After receiving the Memorandum, the respondent determined that she would raise no complaint or objection. She claimed that the policy was never discussed with her and she reasonably assumed it could only apply to new employees. She said that she did not wish to object and so risk immediate termination as she was already 62, a single mother with a son and had financial obligations to meet. Furthermore, the policy had ‘no immediate practical effect’ on her.

The respondent claimed that she had heard nothing further about the policy until a week before her 65 ^th birthday when the Board Secretary advised her that she would be expected to retire on 14 February, 2018. The appellant disputed this fact and claimed that in keeping with the written policy the respondent had in fact been sent a “Notification letter” in 2016, approximately 2 years before her scheduled retirement, which reminded her of the policy and expressly advised that her official retirement date would become effective on 14 February, 2018 – her 65 ^th birthday.

On 14 February 2018, the appellant issued the respondent with an official Retirement letter which thanked her for her service and enclosed a cheque representing her final pay.

The respondent thereupon invoked the trade dispute procedures under the Industrial Relations Act and claimed compensation under the Employment Act on account of her “forced retirement” which she said amounted to wrongful/unfair dismissal. The appellant defended the claim on the basis that the respondent had not been dismissed, but had been lawfully retired in accordance with its written Policy of which she was well aware. Additionally, the respondent claimed she had impliedly consented and affirmed the variation by conduct. The employer also contended that it had led evidence at the trial of its longstanding custom and practice to retire staff at age 65.

Following a contested trial, the Industrial Tribunal held that the respondent's contract of employment had been unilaterally varied without her consent and that she had consequently been wrongfully dismissed. The appellant appealed, claiming, inter alia, that the respondent had been lawfully retired, and further that by her non-objection, she had consented to the variation and affirmed her contract of employment with its varied terms.

After hearing arguments, the Court reserved its decision.

Held : Appeal allowed. In accordance with section 64(2)(c) of the Industrial Relations Act, Ch. 321, the Tribunal's decision (including the award) is set aside with an order that a new hearing be held. There is no order as to costs.

The Industrial Tribunal erred in law by arriving at its final conclusions without conducting a proper analysis of the evidence, and without making crucial findings of fact and of mixed fact and law on the numerous legal issues which arose for its determination.

The Tribunal's approach to the resolution of this employment dispute disclosed a fundamental error of law. A court or tribunal simply cannot arrive at its final conclusions (as this Tribunal did) by ignoring crucial legal issues which had not only arisen on the evidence, but which had been expressly identified for its determination in the respective submissions and authorities which had been laid over for its consideration. Failing to do so is an error of law.

There is nothing in the Tribunal's reasoning which disclosed that it had considered the issues of repudiation, waiver of repudiation, affirmation or implied consent; or again, whether it would or would not be prepared (based on the evidence) to incorporate into the respondent's contract, an implied term reflecting the existence of a pre-existing unwritten custom and practice at the Temple's workplace of which the respondent was aware requiring its non-pastoral staff to retire at age 65. All of these legal issues demanded that the Tribunal (as the primary fact-finder) make specific findings (whether of fact or of mixed fact and law) with a view to finally resolving the dispute one way or the other.

Unfortunately without the benefit of the Tribunal's reasoned Decision on any of these crucial legal issues, it is impossible for us to resolve them on this appeal. In the circumstances, we are satisfied that the matter must be remitted to the Industrial Tribunal for a rehearing and proper determination in accordance with the applicable law.

Aparau v. Iceland Frozen Foods, [1996] IRLR 119; mentioned

Bond v. CAV Ltd [1983] IRLR 360; considered

British Telecommunications plc v. Sheridan, [1990] IRLR 27; mentioned

Duke v. Reliance Systems Ltd, [1982] IRLR 347; considered

English v. Emery Reinbold & Strict Ltd [2002] 1 WLR 2409; applied

Ferguson v. Bahamas Taxi Cab Union, [2018] 1 BHS J No. 108; mentioned

Ferguson v. Snack Food Wholesale Ltd, [2010] 3 BHS J No. 94; mentioned

Henry v. London General Transport Services Ltd, [2001] IRLR 132; applied

Henry v. London General Transport Services Ltd, [2002] EWCA (Civ) 488; applied

Howard v. Department of National Savings, [1981] IRLR 40; mentioned

James Catalyn v. The Ministry of Tourism, 1998/IT/ES/335; mentioned

Johnson v. Gaming Board of the Commonwealth of The Bahamas, [2014] 3 BHS J No. 82; mentioned

Jones v. Associated Tunneling Co. Limited, [1981] 10 IRLR 478; mentioned

Judy Russell v. Palm Security Ltd, 2016/BIT/NR/15; mentioned

Lister v. Romford Ice & Cold Storage Co Ltd, [1957] 1 All ER 125; mentioned

Liverpool City Council v. Irwin, [1976] 2 All ER 39; mentioned

Longley v. Colina Financial Advisors Limited (CFAL), [2012] 2 BHS J No. 104; mentioned

Meek v. City of Birmingham District Council, [1987] IRLR 250; applied

Melon and others v. Hector Powe Ltd, [1980] IRLR 477; considered

Morris (in a representative capacity) v. Paradise Enterprises Limited, [2018] 1 BHS J No. 10;

Nothman v. Barnet London Borough Council (1979) 1 WLR 67; mentioned

Peart v. Dixons Store Group Retail Limited [2005] All ER (D) 18; applied

Quinn and others v. Calder Industrial Materials Ltd, [1996] IRLR 126; mentioned

Sagar v. Ridehalgh & Son, [1931] 1 Ch. 310; mentioned

St. Andrew's School v. Margo Albury, IndTribApp & CAIS No. 75 of 2013; mentioned

The Post Office v. Wallser, [1981] IRLR 37; mentioned

Trollope and Colls Ltd v. North Western Metropolitan Hospital Board (1973) 1 WLR 601; mentioned

W.E. Cox Toner (International) Ltd v. Crook [1981] I.C.R. 823; mentioned

Western Excavation (ECC Ltd.) v. Sharp [1978] 1 QB 761; mentioned

Decision delivered by The Hon . Madam Justice Crane-Scott, JA

Introduction

1 This is an appeal by the Evangelistic Temple (“the Temple”) which challenges a written Decision of the Industrial Tribunal handed down on 26 February, 2021 in which the Tribunal held that the respondent (“Ms. Lightfoot”) had been wrongfully dismissed; and awarded her the net sum of $52,905.18 as compensation, calculated in accordance with section 29 of the Employment Act, Chapter 321A.

2 The Temple seeks an order from this Court which would set aside the Tribunal's Decision and would further dismiss Ms. Lightfoot's claim before the Tribunal on the basis that she was not dismissed, but had reached the retirement age in accordance with its retirement policy.

3 We heard the appeal on 15 July 2021 and reserved our decision. We have allowed the appeal on grounds 1, 4, 5 and 6. However, in accordance with section 64(2)(c) of the Industrial Relations Act, Ch. 321, we set aside the Tribunal's decision (including the award) and order that a new hearing be held. There is no order as to costs. The detailed reasons for our...