Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 36 of 2016

Platinum security services v. Menace (CL-AP 36 of 2016) [2017] TCACA 8 (21 November 2017);

Law report citations
Media neutral citation
[2017] TCACA 8
Coram
Mottley, P
Stollmeyer, JA
Weekes, JA

 

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS CIVIL DIVISION CL-AP 36 OF 2016

BETWEEN PLATINUM SECURITY SERVICES APPELLANT AND ONIL MENACE RESPONDENT

BEFORE:

The Honourable Mr Justice Mottley                      President

The Honourable Mr. Justice Stollmeyer,         Justice of Appeal

The Honourable Mdme Weekes      Justice of Appeal

APPEARANCES:

Mr. Finbar Grant for the Appellant

The Respondent in person (with interpreter, Fabiola Cyriaque)

21 November 2017; 25 April 2018

JUDGMENT

Stollmeyer JA

[1]           On 21 November 2017 we dismissed this appeal and made no order as to the costs of the appeal. This is the written judgment.

[2]           This is an appeal from a decision of the Labour Tribunal ("the Tribunal") dated 16th September 2016, in which Mr. Menace was awarded a total of $11,620.08 consequent upon a finding of unfair dismissal by the Appellant.

[3]           The grounds of appeal set out in the Notice of 9th November 2016, are that the Appellant was:

(i)            never invited to nor attended any conciliation meeting as required by the Labour Ordinance;

(ii)           never given any notice to attend any hearing;

(iii)          never given any opportunity to defend the claim;

(iv)          never given the right to address the Tribunal.

Also, the Appellant claims that its right to a fair hearing was compromised.

[4]           In short, the Appellant says that it was deprived of the right to the benefit of the rules of natural justice.

[5]           In the course of his submissions, Mr. Grant clung tenaciously to the provisions of the Employment (Labour Tribunal Procedure) Rules ("the Rules") and in particular, to the provisions of those Rules relating to the giving and serving of notice of proceedings on a respondent to proceedings before the Tribunal. Those Rules, he submitted, had not been observed, referring to:

(i)            Rule 4, which requires the secretary of the Labour Tribunal to send to a respondent a copy of the Originating Application, together with the requisite notice in Form C;

(ii)           Rule 18, which requires that this notice be in writing

[6]           Mr. Grant also made much of Rule 12 and of Sub-Rules 12(1)(d) and 12(1)(e) in particular. Rule 12(1)(d) gives the Labour Tribunal power to strike out or amend a Notice of Appearance or Defence, and Rule 12(b) gives it the power to strike out any Originating Application, Notice of Appearance or Defence, each on the ground that the document is scandalous, vexatious or frivolous. To do so, he submits, requires prior notice to the relevant party under Rule 12(2) and no such notice was given, but these submissions necessarily fail because there was never any suggestion of such a step being proposed, or much less taken when regard is had to the transcript of the proceedings before the Tribunal.

[7]           For some inexplicable reason, no copy of the transcript was included in the Record of Appeal. Indeed, Mr. Grant appeared unaware of its existence. It was Mr. Menace who provided a copy of the transcript to this Court. Mr Menace also provided the original letter dated 02 February 2016 written by the Commissioner of Labour confirming that the parties had attended two conciliation meetings before him, with the Appellant represented by its Manager, Mr. Shanga Rigby. The Tribunal took note (see page 14 of the transcript) of this letter of 02 February 2016 referring the dispute to the Tribunal after the failure of conciliation.

[8]           That is sufficient to dispose of the first ground of appeal, which Mr. Grant quite properly did not seek to pursue.

[9]           The transcript is also revealing in a number of respects, but most importantly that the Tribunal went to great lengths explaining to Mr. Menace that the Appellant had to be made aware of the claim before a hearing could take place1.

Background

[10]         A brief recounting of the relevant evidence is as follows.

[11]         There were two conciliation meetings between the parties without resolution of the dispute consequent upon the Respondent's dismissal on 07 December 2015. During the course of conciliation “Several attempts were made to collect documents from the Management of Platinum Security. To date, they refused to provide request documents”2.

[12]         The dispute having been referred to the Tribunal by letter of 2nd February 2016, the Tribunal clearly had the jurisdiction to deal with the matter. An Originating Application in Form A was issued on 4th February 2016. Unsuccessful attempts were made to serve the required documents. There appears to have been an initial attempt at service on 20 April 2016, and then by courier of an envelope addressed to Mr. Greg Williams of the Appellant on 27th April 2016.

1 see pages 9, 13, 20 and 24 of the transcript, and page 20 in particular

2 see page 14 of the transcript

There were then several unsuccessful telephone calls to the Appellant    3() and these attempts were recorded at the Tribunal hearing of 17th May 2016, at which time Mr. Menace was represented by counsel. On that day the Tribunal remarked that it would give an "... unless order that allows the Tribunal to proceed..."4, and this would, it appears from the transcript, be done under the provisions of Rule 12. It is to be noted that in this respect the Tribunal erred, because Rule 12 makes no provision for issue of an “unless order", but this does not affect the outcome of the appeal.

[13] The Tribunal next heard the claim on 13th July 2016, when Mr. Menace represented himself utilising the services of a sworn interpreter. The Tribunal remarked then that it would be “. writing to the employer to give reasons why it failed to show up this morning.".5 There is nothing in the transcript, however, to indicate what, if anything, had been done to make the Appellant aware that the matter was on for hearing on that date. The matter was adjourned and came back on for hearing on 18th August 2016.

[14] The transcript reveals that on that day, the President said “The Tribunal has sent the notice relating to this hearing on at least two occasions via a courier to deliver the documents relating to this matter this morning on the 29th of June, 2016 at 2:08 PM. The Tribunal contacted Mr. Shanga Rigby of the Respondent who said he would pick up the document. On the 5th of July, 2016 the Tribunal again tried to contact the Respondent and got no answer. To date the documents have not been collected by the Respondent and the Tribunal shall invoke Rule 12 as the Applicant the Respondent is aware of the proceedings and have made no effort to give reasons why it has not filed a defence or show up before the Tribunal”6. “The mere fact he was contacted since the 29th of June and said he gonna picked up the document and to date he not picked up the documents and haven't shown reasons why he didn't come we now have to officially write to Mr the Respondent and serve it through the post office and that would be deemed to be properly served and we would now set a date to hear your evidence.”

[15] The matter was then adjourned to 1st September 2016 but actually came back on for hearing on 6th September 2016. On that day, the President of the Tribunal is recorded as saying:

“The last hearing was on the 18th of August when the Respondent failed to appear. The Tribunal made an unless order. Notice was duly served on the Respondent via the General Post Office at 10:05 AM the 19th of August 2016 received by one Emik, Emiko Rigby.... The Tribunal hereby invoke Rule 12 of the Employment Ordinance and deny the Respondent the right to give evidence as it failed to submit cause why the Tribunal should not invoke the said Order”.

3 see page 3 of the transcript

4 see page 6 of the transcript

5 see transcript at page 20

6 see transcript at page 23

[16]         The Tribunal then proceeded to hear Mr. Menace's evidence and gave its decision on 16th September 2016.

Analysis

[17]         Leaving aside the erroneous reference to an invocation of Rule 12, it is clear that the Appellant had notice of the proceedings. It had participated, albeit with apparent lack of cooperation, in the conciliation. It knew full well that there was a dispute. That cannot be denied.

[18]         Mr. Shanga Rigby, the Appellant's Manager, represented it at the conciliation. He was made aware of the proceedings before the Tribunal and said he would collect the relevant document from the Tribunal. He did not do so.

[19]         Quite apart from any previous service of notice of the proceedings, written notice of the proceedings was sent to the Appellant through the post as provided for under Rule 18 and was signed for by Emiko Rigby. Indeed, Mr. Grant conceded before us that it had been received. No copy of what Mr. Rigby received was before us, but there is no denial of receipt. There is no denial of Appellant being made aware of the proceedings before the Tribunal except what comes from the Appellant's, Mr Gregory Williams affidavit of 23rd January 2017 (erroneously dated 23 January 2016). This affidavit is in support of an application for a stay of execution dated 7th December 2016 pending this appeal, a writ of Search and Seizure having been issued on 29th October 2016. The affidavit contains an averment that neither he nor the Appellant had been given notice of the proceedings before the Tribunal, or the conciliation that preceded it. That averment cannot be sustained on the evidence. He goes on to give the impression that the Appellant is a limited liability company, but provides nothing to give flesh to that skeletal impression.

[20]         Mr. Grant relies on what he regards as non-compliance with the Rules and Rule 12 in particular. It is, however, Rule 18 that is relevant and there is nothing to demonstrate that the Tribunal failed to observe the provisions of that Rule.

[21]         One function of procedural rules is to ensure that the rules of natural justice are observed and met and it can be said that those rules can where necessary supplement and supplant procedural rules which are found to be wanting. Stated succinctly, those rules require that a party defending or responding to a claim must be given adequate notice of the case and claim he or she is to meet. Sufficient detail and time must be given to allow that party to defend the claim. Not specifying, or pleading, as it has been expressed before us, the claim at all gives the other party no opportunity to prepare itself to meet the case against it. The rules require that a party be given sufficient details of the case or claim to enable it to put forward its defence properly, and must also be given a reasonable opportunity to present its case.

[22]         No argument is raised that the Rules fall short of satisfying the requirements of natural justice. The Appellant's case is that the Rules were not observed, and not observed strictly.

[23]         There are therefore two issues to be considered. First, what was the intention of the Rules. Clearly, it was to give effect to the rules of natural justice. Second, should the non-observance of the letter of the Rules be followed by a total failure of the entire proceedings before the Tribunal.

[24]         Rule 4 required that a copy of the Originating Application and Form C to be sent to the Appellant. These were sent on at least two occasions but delivery was refused. It is, as has been said, clear that the Appellant knew of the proceedings before the Labour Tribunal. There was no failure to meet the requirements of Rule 4, which required only that the documents be sent to the Appellant and did not call for actual service. This reflects the relative informality of proceedings before the Tribunal, as is apparent from the legislation. In those circumstances, the refusal to accept delivery of the documents cannot be regarded as rising to the level of failure to observe the requirement s of Rule 4.

[25]         It is conceded that Rule 18 was complied with and it is clear that the Tribunal's reference to Rule 12 was erroneous. The latter, however, cannot be said to negate the observance of the rules of natural justice.

[26]         Further, even if the Tribunal did commit an error, or errors, in conducting its proceedings, not all procedural errors necessarily constitute a denial of natural justice. Any such error, whether on its own or together with any other errors, must be looked at to see whether it or they make the proceedings and the end result of the proceedings so unfair as to render the entire proceedings unfair. Support for this reasoning can be found, inter alia, in the Canadian case of Street v B.C. School Sports.7

[27] The Rules were complied with, even if perhaps not observed to the letter. More important, there is nothing to indicate that the rules of natural justice were in any way abrogated, diminished or not observed in the instant case. The Tribunal was aware of the need to observe these rules and made it clear that it was complying with them. The Appellant knew of the dispute, participated in the conciliation and was informed of, and well aware of, the proceedings before the Tribunal. It chose not to participate and has paid the price of doing so. It cannot be said that any error in observing the Rules made the proceedings and the result of them unfair in any way.

Disposition

[28] The appeal was therefore dismissed for these reasons, with no order as to the costs of the appeal.

Stollmeyer JA

I agree

Mottley P

I agree

Weekes JA

__________________________

7 2005 BCSC 958