IN THE COURT OF APPEAL OF TURKS AND CAICOS
CIVIL APPEAL NO, 5 OF 2013
BETWEEN: LYNDEN HALL
APPELLANT
(T/A as Express Water Delivery)
and
RODIN ST. LOUIS
RESPONDENT
Before:
The Honorable Mr. Justice Zacca. President
The Honorable Mr. Justice Mottley, Justice of Appeal
The Honorable Mr. Justice Forte, Justice of Appeal
Guy Chapman of Savory & Co. for the Appellant.
George Misick of Karam & Misick for the Respondent.
Heard on September 3, 2013
Delivered on: January 30, 2014.
Mottley J.A,
1. At the conclusion of the appeal the Court indicated that the appeal against the award of
compensation was allowed. We ordered that the matter be returned to the Tribunal in
order that the Tribunal may make a proper finding as to the compensation to be paid to
the Respondent. At that time, we promised to put our reasons for doing into writing.
These are those reasons.
2. In its decision dated 23 January 2013, the Tribunal stated that having "considered all the
evidence and submissions made on behalf of the Applicant and the Respondent together
with all surrounding circumstances". It "concluded that the Respondent unfairly
dismissed the Applicant without warning and without notice."
3. This Court adopts the background to the matter as is set out in paras 11-15 in the
Decision of the Tribunal. The Tribunal stated:
11 I] The Applicant, Rodin St. Louis, claims that he entered into employment as
driver with the Respondent Lyden Hall/Express Water Company Ltd in
September 2000 and continued in this capacity until February 21, 2010. The
Respondent knew the Applicant for some nine years following introduction by a
friend. He, the Respondent objected and informed the Tribunal that sometime
with the nine year period of employment as a driver commenced after the
Applicant had acquired a driver's licence.
[12] There are conflicting evidences regarding the Applicant's weekly wage
which, the Applicant alleges was calculated at $10.00 for each load of water,
rather than the fixed amount of $250.00 as the Respondent painstaking outlines.
Two separate FCIB bank deposits to the Applicant's Savings Account made on 6th
March and 17th March 2009 indicates to the contrary.
[13] The Applicant claims that he had no Contract of Employment during his
period of employment with the Respondent and that for some four years he paid
for his own Work Permit. The Applicant also alleges that the Respondent held his
Passport for as long as he worked for the Respondent.
[14] Over the nine year period the Applicant both in his oral and written
statements related that he was subjected to accusations of misuse as well as illegal
use of the Respondent's vehicle. During the Applicant's meeting with the
Respondent on February 21, 2010 the Applicant gave evidence that the
Respondent told him: "You cost me too much money, you need to pay for the leak
and thing and the transmission that was broken." The Applicant reminded the
Respondent of his many calls to him reporting the noise in the transmission,
however the Applicant related the Respondent as saying" "if I don't want to pay, I
don't have no job." The Applicant in retaliation gave evidence that he said: "No
Boss, in 2003 I have a truck that fall; I spent more than $3000.00 to fix it. I said,
that's not going to happen this time. I not paying for anything." The Applicant
said that following his statement the Respondent demanded all his keys and told
the Applicant "not to put foot in his place in South Dock."
[15] The Applicant did not report to work after February 21, 2010 neither was
there any form of communication between himself and the Respondent. The
Respondent's telephone records (in evidence) for February 22, 2010 show a 03
second call to the Applicant's mobile phone.
Included in the Agreed Bundle before the Tribunal (Pages 12-17) are five
documents which the Respondent claims he prepared failing his attempts to reach
the Applicant. The three warning letters dated February 25, March 01, March 05,
2010 followed by a Termination Letter on March 10, 2010 then another entitled
Job Desertion dated March 21, 2010, neither of which were ever received by the
Applicant. During oral questioning by the Tribunal the Respondent acknowledged
that he knew where the Applicant lived and that he had made attempts to visit
him. However, there is no evidence to substantiate the Respondent's claim that he
made efforts to reach the Applicant via third parties or contacting him at his
residence."
4. On 19 February 2013, the Tribunal made the following award for compensation:
11] Based on the decision of the Tribunal of Unfair Dismissal of the Applicant
from the Respondent's employ, the Applicant should be awarded compensation
under Section 85(2) of the Employment Ordinance 2004 which states:
"(2) If on a complaint under section 83, the tribunal hearing the
complaint finds that the grounds of the complaint are well-founded and
no order is made under section 86, the tribunal may make an award of
compensation for unfair dismissal, calculated in accordance with
sections 90 to 92, to be paid by the employer to the employee."
The Labour Tribunal therefore awards compensation as follows:
[2] Basic Award
The Employment Ordinance 2004 Section 90(2) further states: "The amount of
the basic award shall be calculated by reference to the period, ending with the
effective date of termination, during which the employee had been continuously
employed by starting at the end of the period and reckoning backwards the
number of years of employment falling within that period, and allowing-
Subsection (2)(b) "one week's basic wage for each such year of
employment not falling within (a) in which the employee was not below
the age of twenty-one;
In this case, the Applicant was 27 years at the time of employment; hence he is
entitled to one week's pay per year of employment:
Date of Birth: August 26, 1973
Date employment commenced September 2000
Date employment ended March 21, 2010
Weekly Income $700.00
Total Period of employment 9 yrs and 6 mths
Basic Amount Awarded:
(1) (a) $700.00 x 52 per year = $36,400 divided by 12 = S3,034.00
per month
(b) 9 years at one week per year calculated at S700 x 9 =
$6300.00
(c) 6 month at S700.00 divided by 2 = S350.00
Total $6300.00 + S350.00 = $6650.00
[3] Vacation Pay
The Tribunal awards the Applicant vacation pay for unused vacation for a period
7 years as indicated in the Originating Application clause 12(4)
Weekly wages = $700.00 x 2 wk pay x 7 years
= $700.00 x 14 = $9800.00
[4] Work Permit Fees
The Applicant gave evidence that he paid for his own work permit of four (4)
years, which was disputed by the Respondent. The Tribunal accepted the evidence
given by the Applicant that payments were made by the Applicant for his work
permit fees.
Work Permit for 4 years at cost of $1000.00 per year = $4000.00
[5] Outstanding Weekly pay
The Tribunal awards the Applicant after considering the evidence given on behalf
of both parties for outstanding pay for the Applicant's final week and three days
of employment in the amount of $1,160.00."
"To this end [Notice Pay] the Tribunal finds the dismissal unfair after considering
all the evidence and the surrounding circumstances.
The Tribunal awards two months to the Applicant: $700.00 x 8 weeks 45,600.00
[7] Immediate Loss: The Tribunal finds that due to the down turn in the Turks &
Caicos Islands economy it was reasonable to accept that it was difficult to gain
employment.
The Tribunal awards two months remuneration 45,600.00
[8] Future loss: The Tribunal took into consideration the local job market, the
applicant's age and skills, and the likely duration of the job lost by unfair
dismissal after being employed by the Respondent for nine (9) years and six (6)
months.
The Tribunal awards one month remuneration = $2,800.00
Total Due to the Applicant:
Basic Compensation: $6,650.00
Vacation Pay: $9,800.00
Reimbursement Work Permit $4,000.00
Outstanding Weekly pay: $1,160.00
Notice Pay: $5,600.00
Immediate Loss: $5,600.00
Future Loss: $2,800.00
Total Amount: S35,610.00
The sum of Thirty five thousand six hundred and ten dollars ($35,610.00) be
made payable to the Applicant."
5. In his evidence the Respondent stated that he was employed as a truck driver with the
Appellant delivering water throughout Providenciales. In response to a question as to
what was his salary, he said $800.00 to $900.00. He indicated that he was paid $10.00 per
load. He stated further that he "used to do 20, 15, 13 and 16." He was shown a Paystub
Detail which showed his salary for the period 2 March 2009 to 7 March 2009 as $250.00.
When asked by the President of the Tribunal whether his salary was $250.00, he
responded "I don't know." When his attorney-at-law sought clarification as to whether
his salary was $250.00, the Respondent replied that it was not correct. However, no
further attempt was made by counsel to find out what his salary was.
6. The Appellant had previously stated that the Respondent had "worked for the same
amount of hours" each week. He indicated that the Respondent worked for two hundred
and fifty dollars less National Insurance each week. This was so whether he was paid in
cash or by cheque.
7. In cross examination, it was suggested to the Appellant that the cheque of $757.00 paid to
the Respondent by the Appellant was not for incidentals as the Appellant alleged but was
part of his salary. This suggestion was rejected by the Appellant.
8. The Tribunal had a numbers documents showing the N.I.B. contributions by the
Respondent for the years 2009 and 2010. In addition, a document entitled Contribution
Summary for Robin St. Louis showed the Respondent's N.I.B. contributions for the
period 2002 to February 2010. The Contribution Summary does not support the
allegation of the Respondent that he worked for the Appellant from 2000. Nor does it
support his evidence that he worked for $800.00 to $900.00 per week. In fact, the
documents from N.I.B. directly contradict the oral testimony of the Respondent.
9. It was submitted on behalf of the Appellant that there was not enough evidence before the
Tribunal for it to hold that the Respondent's employment commenced on 1 September
2000. In such circumstances, it was argued, the Tribunal could not properly come to the
conclusion that the period of employment was 9 years and 6 months. Consequently,
there was no proper basis on which the Tribunal could base its award on the start date of
employment.
10 In addition, counsel for the Appellant contended the N.I.B. Contribution Summary
does not support a claim of full-time employment of the Respondent between September
2002 and March 2009. He further argued that the oral evidence supported some kind of
intermittent employment but not unbroken continuous employment.
11 The Master Employment Contract showed that for the period commencing 2
March 2009, the Respondent's basic monthly salary was stated to be $1000.00. The
Paystub Detail for the period 2 March 2009 until 20 February showed that his weekly
earning was $250.00 per week.
12 In the Basic Amount Award it is stated:
1(a) $700.00 x 52 per year = $36,400 divided by 12 = $3,034.00 per month
(b) 9 years at one week per year calculated at $700 x 9 = $6300.00
(c) 6 month at $700.00 divided by 2 = $350.00
Total $6300.00 + $350.00 = $6650.00
13 In respect of vacation pay the Tribunal award was made up as follows:
Weekly wages = $700.00 x 2 wk pay x 7 years = $700.00 x 14 = $9800.00
14 In respect of Notice Pay. the Tribunal award for two months was:
$700.00 x 8 weeks = $5600.00
15 Under the head of Immediate Loss, the Tribunal awarded two months remuneration
$5600.00
16 Under the head of Future Loss, the Tribunal having referred to the Respondent -being
employed by the Respondent for nine (9) years and six (6) months" awarded the
Respondent one month's remuneration of $2800.00
17 An analysis of these awards shows that the Tribunal concluded that the Respondent's
salary was $700.00 per week. In reaching this conclusion it would appear that the
Tribunal accepted the evidence of the Respondent that he earned $700.00 per week and
rejected the documentary evidence of the Paystub Details and N.I.B. Contribution
Details. In so doing, the Tribunal did not give any reason for rejecting the documentary
evidence in favour of the unsupported oral testimony of the Respondent. The requirement
to give reasons was dealt with by the Court of Appeal in Allan Christopher Charles Meek
v City of Birmingham District Council [1987] WL 492248 Bingham L.J. ,as he then was,
giving the judgment of the Court stated:
"It has on a number of occasions been made plain that the decision of an
industrial Tribunal is not required to be an elaborate formalistic product of refined
legal draftsmanship, but it must contain an outline of the story which has given
rise to the complaint and a summary of the Tribunal's basic factual conclusions
and a statement of the reasons which have led them to reach the conclusion which
they do on those basic facts. The parties are entitled to be told why they have won
or lost. There should be sufficient account of the facts and of the reasoning to
enable the EAT or, on further appeal, this court to see whether any question of
law arises; and it is highly desirable that the decision of an Industrial Tribunal
should give guidance both to employers and trade unions as to practices which
should or should not be adopted.
Nothing that I have just said is, as I believe, in any way inconsistent with previous
authority on this subject. In UCATT v. Brain [1981] IC.R. 542, Lord Justice
Donaldson (as he then was) said at page 551:
"Industrial tribunals' reasons are not intended to include a comprehensive
and detailed analysis of the case, either in terms of fact or in law.... The
reasons are then recorded and no doubt tidied up for differences between
spoken English and written English. But their purpose remains what it has
always been, which is to tell the parties in broad terms why the lose or, as
the case may be, win. I think it would be a thousand pities if these reasons
began to be subjected to a detailed analysis and appeals were to be brought
based upon any such analysis. This, to my kind, is to misuse the purpose
for which the reasons are given."
A further statement was made by my Lord in Alexander Machinery (Dudley) Ltd
v. Crabtree [1974] I.C.R. 120, and these observations are cited by Lord Justice
Eveleigh in Varndell v. Kearney & Trecker Marwin Ltd. [1983] IC.R. 683:
"It is impossible for us to lay down any precise guidelines. The overriding
test must always be: is the tribunal providing both parties with the
materials which will enable them to know that the tribunal has made no
error of law in reaching its findings of fact? We do not think that the brief
reasons set out here suffice for that purpose."
Lord Justice Eveleigh adds the comment at page 694G:
"He is not, as I read that judgment, saying that in every case all these
points to which I must refer must be adhered to, otherwise there will be an
error of law in the decision of the tribunal."
Lastly, in Martin v. Glynwed Distribution Ltd. [1983] I.C.R. 511 at page 520F,
my Lord said:
"The duty of an industrial tribunal is to give reasons for its decision. This
involves making findings of fact and answering a question or questions of
law. So far as the findings of fact are concerned, it is helpful to the parties
to give some explanation of them„ but it is not obligatory. So far as the
questions of law are concerned, the reasons should show expressly or by
implication what were the questions to which the industrial tribunal
addressed its mind and why it reached the conclusions which it did, but the
way in which it does so is entirely a matter for the industrial tribunal."
18 The Tribunal was clearly under a duty to give reasons why it preferred the oral
unsupported evidence of the Respondent to the documentary evidence of the N.I.B.
Contributor and the Paystub Details.
19 In addition. the Tribunal did not state its reason for concluding why it decided that the
Respondent's employment commenced in 2000 when the N.I.B. Contributory Summary
did not support such a finding.
20 In our view, it was necessary for the Tribunal to make necessary finding of facts as to the
correct wages of the Respondent and to state its reasons for arriving at that conclusion
before calculating the amount of the award of compensation to which the Respondent
was entitled.
Zacca P.
Mottley J.A.
LA-4L_
Forte J.A.