COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

SCCivApp & CAIS No. 175 of 2017

BETWEEN

ALEXANDER BROWN

Appellant

AND

GRAND BAHAMA POWER COMPANY LTD

Respondent

BEFORE: The Honorable Mr. Justice Isaacs, JA

The Honorable Mr. Justice Jones, JA

The Honorable Mr. Justice Evans, JA

APPEARANCES: Mr. Maurice Glinton, QC, with Ms. Meryl Glinton,

Counsel for Appellant

Mr. Robert Adams, Counsel for Respondent

DATES: 6 February 2019; 21 March 2019; 6 May 2019; 9 October 2019

************************************************************

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

2

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.

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

REASONS FOR DECISION

Reasons delivered by the Honourable Mr. Justice Evans, JA:

1. 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.

2. 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.

3

BACKGROUND

3. On 3 December 1990, the appellant commenced his employment with the respondent.

4. 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”).

5. 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.

6. 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.

7. 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.

8. As the pleadings were of significance during submissions it is convenient to set out the statement of claim in full as follows:-

1. The defendant is a registered Company in the Commonwealth of the Bahamas and carrying on business

as a supplier and distributor of electricity.

2. The plaintiff began employment at the Grand Bahama Power Company formerly Freeport Power Company

Limited on August II, 1980.

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.

4

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.

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.

6. The said industrial agreement made no provision for termination without cause.

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.

8. The plaintiff intends to rely on the said industrial agreement at the trial.

9. The plaintiff was 48 years of age at the time of termination.

10. The defendant breached the plaintiff’s contract of employment by discontinuing to pay his wages and benefits

from March 14, 2011 to present.

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.

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

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.

And the plaintiff claims:

5

1. The total sum of Forty Eight Thousand & Twenty Dollars & Ninety Cents ($48,020.90), and continuing.

2. Reinstatement pursuant to clause 12.5 of the industrial agreement.

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.

4. Interest pursuant to the Civil Procedure (Award) of Interest Act, 1992;

5. Costs;

6. Such further or other relief as the Court deems just.”

9. 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”.

10. 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?”

6

10. 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?”

11. 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 respondent.

12. In her judgment the learned judge made several important findings and at paragraph 123 she summarized them as follows:-

“123. So, in summary, my findings are as follows:

1) This action having commenced on 16 December 2011, the only industrial agreement that the plaintiff could have

relied on at the time would have been the 2000 industrial

agreement, since the 2012 industrial agreement had not yet

been executed and or registered.

2) The express 5-year term of the 2000 industrial agreement expired on 1 January 2005.

3) In light of the mandatory provisions of section 46(2) of the IRA, clause 14.1 in the 2000 Industrial agreement did not

have the effect of legally extending the life of the 2000

industrial agreement beyond 1 January 2005.

4) Therefore , after its express 5 year term expired, the 2000 industrial agreement was no long a registered industrial

7

agreement for the purposes of sections 46, 49, 50 and 51 f

the IRA and, after 1 January 2005, its terms and conditions

were binding ‘in honor” only.

5) No successor bargaining agreement between the Union and the defendant having been reached and registered prior to

14 March 2011, there was no registered industrial

agreement in force and binding, in law, on the parties, at

the date of the plaintiff termination by the defendant.

6) Therefore in terminating the plaintiff’s employment on 14 March 2011, the defendant did not reach the terms of the

2000 industrial agreement.

7) The terms and conditions of the 2000 industrial agreement were not incorporated into the plaintiff’s individual

contract of employment with the defendant, either

expressly or impliedly, by clause 14.1 aforesaid or

otherwise.

8) In the absence of evidence of any other terms and conditions of the plaintiff’s individual contract of

employment with the defendant, on expiration of the 2000

industrial agreement, by virtue of section 77(2) of the

Employment Act, the mandatory provisions of that Act

became the legally enforceable terms and conditions of the

plaintiffs employment with the defendant.

9) Among the mandatory terms and conditions of the Employment Act are the conditions set out in section 29

thereof, which recognize that an employer may terminate

an employee with notice and, therefore, without cause.

10) In any event, even if the 2000 industrial agreement had been in force, or its terms incorporated into the plaintiff’s

individual contract of employment with the defendant,

there was nothing in the terms of the 2000 industrial

agreement to prohibit the defendant from dismissing the

plaintiff, without cause, under the common law and to

compensate him under section 29 of the Employment Act.

11) The plaintiff has adduced no evidence to show that the sum offered by the defendant pursuant to section 29 aforesaid,

was incorrect”.

8

THE GROUNDS OF APPEAL

13. By the Notice of Appeal the 10th August 2017 the appellant has asserted 6 separate grounds of appeal as follows:-

“AND FURTHER TAKE NOTICE that the grounds of appeal

as to substantive matters on which the leaned Judge erred in

law and procedure are, inter alia;

1. She having identified at the outset the underlying issue as

the respondent not regarding itself legally bound by the

provisions of a subsisting registered industrial agreement

between itself and The Bahamas Industrial Engineers and

Supervisory Union (the recognized bargaining agent for the

bargaining unit in which the appellant was included)

(“BIEMSU”), wrongly approached the appellant’s action as

brought for breach of contract of employment. As a result, the

issues of subsistence and relevance of any registered industrial

agreement to the plaintiffs claim distracted the learned judge’s

focus from the real issues: first as to the legal effect and

practical consequence upon the appellant’s employment with

the respondent of the notice contained in the letter to him of

14th

March 2011 purporting immediate termination of his

employment by summary dismissal; secondly. (regardless of

implication of terms of any subsisting registered industrial

agreement upon the appellant’s employment contract) as to the

effect of the respondent’s failure to satisfy requirements of

section 31 of The Employment Act, 2001; thirdly, as to failure

of compliance with the said provisions being such a

circumstance of fundamental breach of the employment

contract that would entitle the appellant be reinstated; and,

fourthly, as to the extent of individuals’ contracts of

employment being mainly or substantially regulated by The

Employment Act, 2001, summary dismissal for cause must, if it

is not to be repugnant as unfair dismissal under the Act,

comply with provisions under Part IX thereof.

2. She asked herself (and proceeded to answer) the wrong

questions in the course of which she wrongly exercised an

appellate jurisdiction in purporting to reinterpret (as opposed

to distinguishing) Longley’s earlier holding as to the true

meaning of clause 14.1 of Section XIV of an expired 2006

9

registered industrial agreement between the respondent and

BIEMSU, notwithstanding section 46.2 of The Industrial

Relations Act, 2001 (“the IRA”).

3. She failed to consider the effect of provisions of the IRA as to

implicated terms of an employment contract, given the

definition of “employee” in section 2(1) of the Act and section 4

thereof which states that its provisions “shall have effect

notwithstanding any other law and notwithstanding any

contract of employment, arrangement, or custom (being a

contract of employment, arrangement, or custom made or in

being whether before or after the commencement of this Act)

so, however, that nothing in this Act shall be construed as

limiting or restricting.

(a) any greater rights or better conditions of any employee

under any law, contract of employment, arrangement or

custom;

(b) the right of any employee or trade union to negotiate on

behalf of any such employee, any greater rights or better

benefits; or

(c) an employer from conferring upon any employee fights or

benefits that are more favourable to the employee than the

rights or benefits conferred by this Act”

In the result, the learned judge’s findings of a registered

industrial agreement having to be in force at the time of

termination of the appellant’s employment contract for him to

be able to rely upon it for implicated terms, and of BIEMSU

having to be party to the action to obtain the relief the

appellant sought, are both manifestly wrong.

4. The learned judge having accepted respondent’s counsel

submission to the contrary, it is respectfully submitted she

erred in doing so because, by operation of section 4.

paragraphs (a) and (b) of The Employment Act, 2001 (“the

EA”) the express or implied incorporation of terms does not

arise in individual employees’ contracts of employment. The

question (which the learned judge’s judgment does not

address) is whether the appellant and the respondent had

agreed to disapply those provisions of the EA to the

employment relationship. It follows she was wrong to rely

uncritically on this Court’s decision in Hutchinson Lucaya

10

Limited v. Commonwealth Union of Hotel Services and Allied

Workers SCC1v. App. No. 61 of 2014

5. She was wrong to find (at paragraph 99 of her judgment)

“that the terms of the 2000 industrial agreement were not

incorporated into the plaintiff’s individual contract of

employment with the defendant either expressly or impliedly,

by clause 14.1.” She ought instead to have held the appellant

all times had the benefit of provisions (including clause 14.1) of

the 2000 registered industrial agreement (to the extent such

represent greater or better benefits) as part of his contract of

employment.

6.The appellant’s pleaded case and counsel’s submissions

notwithstanding, the real issues to be tried underlying his

several causes of action arising from summary dismissal by

which his contract of employment was terminated by the

respondent’s intentional act, were not determined by the

learned judge; and to that extent her judgment works injustice

upon the appellant and ought not be allowed to stand”.

Discussion and Findings

Grounds 1 and 6- The learned judge was distracted by and focused only on the registered

Agreement and therefore failed to make a determination on the real issues arising from the

termination of the appellant’s contract of employment.

14. The crux of these grounds of appeal is that the appellant claimed that the learned judge

placed her focus only on the validity and applicability of the 2000 Registered Agreement

and therefore failed to determine the real issues in this case which, in summary, included:

1. The legal effect and practical consequence of the respondent summarily dismissing the appellant;

2. The effect of the respondent’s failure to satisfy requirements of section 31 of The Employment Act, 2001;

3. The fact that such failure satisfy the requirements constituted a fundamental breach of the employment contract that would entitle the appellant be

reinstated;

4. The appellant’s summary dismissal should have complied with the provisions of Part IX of The Employment Act, 2001.

11

15. In response, the respondent argued that in the court below the appellant had never pleaded or argued that he was summarily dismissed by the respondent. There had been no

evidence produced by either of the parties regarding the summary dismissal or whether

there had been satisfaction of section 31 of the Act in that regard. He argued that in any

event the appellant had been dismissed ‘with notice’ and as such, the appellant should not

be allowed to raise a new point on appeal.

16. Considering the argument on the new point raised, we note that while this Court has the discretionary power to allow a party to argue grounds not raised in the proceedings

below, we must consider if it is in the best interest of justice to do so. This Court

(differently constituted) addressed this in Queirazza v Leday and Another SCCiv App

no.112/2015

17. Additionally, in Singh v Dass [2019] EWCA Civ 360 the principles concerning new points raised on appeal was addressed by Haddon-Cave, LJ stating:

15. The following legal principles apply where a party seeks

to raise a new point on appeal which was not raised below.

16. First, an appellate court will be cautious about allowing a

new point to be raised on appeal that was not raised before the

first instance court.

17. Second, an appellate court will not, generally, permit a

new point to be raised on appeal if that point is such that either

(a) it would necessitate new evidence or (b), had it been run

below, it would have resulted in the trial being conducted

differently with regards to the evidence at the trial (Mullarkey

v Broad [2009] EWCA Civ 2 at [30] and [49]).

18. Third, even where the point might be considered a 'pure

point of law', the appellate court will only allow it to be raised

if three criteria are satisfied: (a) the other party has had

adequate time to deal with the point; (b) the other party has

not acted to his detriment on the faith of the earlier omission to

raise it; and (c) the other party can be adequately protected in

costs. (R (on the application of Humphreys) v Parking and

Traffic Appeals Service [2017] EWCA Civ 24; [2017] R.T.R. 22

at [29]).

18. Applying the principles addressed in Singh, it is clear that dealing with summary dismissal would necessitate new evidence. The respondent would have been required to

adduce evidence addressing the subject of summary dismissal.

19. 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 Agreement. His

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23EWCACIV%23sel1%252009%25year%252009%25page%252%25&A=0.8906890375107902&backKey=20_T28947047922&service=citation&ersKey=23_T28947040479&langcountry=GBhttps://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23EWCACIV%23sel1%252017%25year%252017%25page%2524%25&A=0.1972152236351049&backKey=20_T28947047922&service=citation&ersKey=23_T28947040479&langcountry=GB

12

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.

20. As it stands, the appellant’s pleadings were very specific and narrow with the focus strictly on the respondent’s alleged breach of the Agreement. In fact, even when

prompted, Counsel for the appellant failed to put an alternative position to the court. This

was clearly established in the exchange between Counsel and the learned judge found at

pages 322 – 326 of the Supplemental Record.

21. In this exchange Mr. Ferguson says:

“The issue that we are asking this Court to decide is a very

simple issue. A Collective Agreement was entered into between

the parties. We say if there is going to be termination, the

termination must be pursuant to the Agreement; that is the

essence of our case.”

22. He goes on to say:

“ But it was never the intention to make the case for unfair

dismissal under section 34. That would have been stated

emphatically in the Statement of Claim. What is stated in the

Statement of Claim, is the Industrial Agreement and we ask

for what the Industrial Agreement provides”

Court: So you’re only relying on the Industrial Agreement

Mr. Ferguson: The Industrial Agreement”

23. The discourse continues:

“Court: So the issue that you raised in your skeleton argument

as to whether or not the termination of the plaintiff by the

defendant without cause be considered fair having regard to

the specific sections of the Employment Act, that is out of the

window---

Ferguson: That is not an issue for the Court to decide. And it is

not an issue for the Court to decide on section 34 or 36 or

whatever have you

Court: So the Court need not consider whether or not the

plaintiff was unfairly dismissed under the statutory provision--

-

13

Ferguson: Under the Employment Act--- sorry—

Court: The only thing—your case is, that having regard to the

terms of the Industrial Agreement, the plaintiff was unfairly

dismissed

Ferguson: Unfairly dismissed, that is our case.

Court: And that is the only case you’re looking to put forward

Ferguson: That is the only case we’re putting forward and that

is the only issue. That is why I said the document, the matter

has to be resolved between the four corners of the Agreement;

I said that at the beginning. Those remarks that were made

were never intended to be pleaded as such; it is not in the

pleadings, that is the point I am making”

24. This extract shows that the appellant’s case was clearly and solely focused on the Agreement. Accordingly, the appellant is bound by his pleadings in the lower court and

any desire to deviate from them would have required an amendment to the same. I

addressed this issue in Ferguson and another v Lignum Vitae Cay Ltd [2012] 2 BHS

J. No 112 where I referred to the English Court of Appeal decision in Nada Fadil Al

Medenni vs. Mars UK Limited [2005] EWCA Civ 1041 where Dyson LJ stated

“ It is fundamental to our adversarial system of justice that the

parties should clearly identify the issues that arise in the

litigation, so that each has the opportunity of responding to the

points made by each other. The function of the judge is to

adjudicate on those issues alone. The parties may have their

own reasons for limiting the issues or presenting them a certain

way. The judge can then invite, and even encourage, the

parties to recast or modify the issues. But if they refuse to do

so, the judge must respect that decision. One consequence of

this may be that the judge is compelled to reject a claim on the

basis on which it is advanced, although he or she is of the

opinion that it would have succeeded if it had been advanced

on a different basis. Such an outcome may be unattractive,

buy any other approach leads to uncertainty and potentially

real unfairness”

25. It is significant that in this present case the appellant had clearly been given the opportunity to amend his pleadings and did not do so. As such, there was 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 to interfere with her

decision.

14

26. Accordingly, grounds 1 and 6 must fail.

Ground 2- The learned judge exercised appellate jurisdiction in reinterpreting instead of

distinguishing the holding of Senior Justice Longley regarding the true meaning of clause

14.1 of section XIV of the 2006 registered industrial agreement despite the provisions of

section 46.2 of the IRA

27. This ground of appeal is based on the findings of Longley, SJ (as he then was) in the court below in the matter of 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 where at paragraphs 31-33 he interpreted whether or not the

registered industrial agreement 2000 remained binding in effect even when it had reached

its five year expiration date. He stated the following:

“ 31. In this regard an issue has arisen as to whether the

agreement is still valid and binding or has it expired?

32. Paragraph 14.1 of the agreement provides as follows: This

agreement shall become effective as of 12:00 am of the 1st day

of January 2000 and shall continue in full force and effect until

12:00 am of the 1st day of January 2005. Either party may

notify the other in writing, not more than twenty-four (24)

calendar months, not less than sixty (60) days prior to the

expiration date of its desire to modify or amend or terminate

this agreement. However, in the event no agreement is reached

by the expiration of this agreement, this agreement shall

remain enforced until a successor bargaining agreement has

been reached

33. As I understood Mr. Ferguson, he submitted that the effect

of the last sentence of clause 14.1 which was registered in

accordance with the act is that the terms and provisions of the

agreement continue to be binding on the parties for a further

period of five (5) years until a new Industrial Agreement is

made. As I understood the submission its effect is that that

provision permits the creation of renewable five (5) year

agreements on the same terms until a new agreement is

reached.

34. Mr. Adams for the power company submitted that by

virtue of section 46(2) of the Act, the agreement has a

maximum life span of five (5) years and so at its expiration in

15

January 2005, it came to an end and to continue it would be

illegal and contrary to the provisions of the Act

35. The question to my mind it seems to be whether the terms

of the agreement which may have expired, can by

supplemental or collateral agreement contained in the

agreement, continue to bind the parties. If Mr. Ferguson’s

contention is correct then by this device the provisions of the

Act relating to the duration of the agreement may appear to be

circumvented and the result would be the creation of

perpetually renewable five (5) year agreements which would

seem to run counter to section 46(2) of the Act.

36. My first reaction was that the argument is untenable.

However, an industrial agreement cannot be registered with a

provision that is illegal or contrary to law or the Act. The Act

requires every Industrial Agreement to be submitted to the

Tribunal for review and approval and the Tribunal must be

satisfied before registering the Industrial Agreement that it

contains no illegality after taking into consideration the

comments of the Minister and where any illegality is found the

Tribunal shall refuse to register the agreement or may require

the parties to remove the illegality. The agreement was

registered and it seems to me clause 14:1 could not have

escaped the scrutiny of the Tribunal which must be taken to

have given its tacit approval to perpetually renewable

agreements as lawful and binding and not violative of the

provisions Act.

37. It seems to me that unless one of the parties can show to the

contrary, the agreement in its terms must be presumed to be

valid and binding as a renewable agreement for further

periods of five (5) years until a new agreement is reached. I

would so hold”

28. Taking the holding of Senior Justice Longley into consideration, the learned judge in paragraphs 67-68 of her decision stated:

“67. In the circumstances, and without expressing any view on

the correctness or otherwise of the same, I accept that Longley

Sr. J did make a finding that “ unless one of the parties can

show to the contrary, the agreement in its terms must be

presumed to be valid and binding as a renewable agreement

for further periods of five (5) years until a new agreement is

reached”; although I gathered from that finding that the

16

learned judge was saying that the effect of clause 14.1...was to

raise a presumption that the parties intended the 2000

industrial agreement to be renewable for the further periods of

five years until a new agreement was reached, but he accepted

that such presumption could be rebutted by one of the parties

showing a contrary intention.

68. Furthermore, while there is no doubt that Senior Justice

Longley’s decision is instructive, and I can certainly adopt the

same if I agreed with it, I accept the submission of counsel for

the defendant that I am not bound to follow that decision, the

same having been made by a judge of equal jurisdiction, and

that, in the circumstances, it remains open to me to consider

afresh the legal effect, if any, of clause 14.1 aforesaid on the

2000 industrial agreement and or, the employment relationship

between the plaintiff and the defendant post 1 January 2005”

29. She continued her analysis at para 76-79 of her decision:

“76. I accept counsel for the defendant’s submissions that had

Parliament intended that the parties be permitted to contract

in such a way to extend the life of an industrial agreement

beyond a maximum period of five years, enabling language

such as that included to permit the Minister to approve a

shorter period would have been included in the section. And in

that regard I accept that in drafting section 46(2)… the

legislators would, no doubt, have addressed their minds to the

issue of whether or not exceptions to the duration of the

industrial agreement could be made before deciding that only

an exception for shorter term is permitted.

77. In the BIEMSU v GBPC case, Senior Justice Longley

posed the question as to whether the terms of the 2000

industrial agreement which may have expire could, by

supplemental or collateral agreement contained therein, that is

clause 14.1… continue to bind the parties. He found that they

did.

78. While I agree with the learned Senior Justice that the

parties can certainly agree to continue to be bound by the

terms of the 2000 industrial agreement after its expiration, and

in my judgment by clause 14.1… they did, as I understand the

law and the authorities cited, they would be bound in honour

only.

17

79. To hold otherwise, would in my view, as Longley Sr.J.

intimated in BIEMSU v GBPC case, have the effect of

“circumventing and running counter to” the provisions of

section 46(2) of the Act which prescribed the maximum life

during which the registered industrial agreement can have

binding legal effect on the parties.”

30. The appellant argued that the decision of the learned judge transgressed the limits of judicial propriety by reinterpreting clause 14.1 of the Agreement as decided by Senior

Justice Longley

31. The respondent in response referred to paragraph 68 of the learned judge’s decision (see para 31 above) and argued that the learned judge did not purport to exercise appellate

jurisdiction in relation to Senior Justice Longley decision as she was a judge of equal

jurisdiction and entitled to consider afresh the issue of whether or not section 14.1 of the

Agreement extended beyond the statutory maximum of 5 years.

32. We accept the submissions of the respondent on this point as it is trite that the learned judge as a judge of equal jurisdiction, at the time was free to reconsider afresh the issue

of whether section 14.1 of the Agreement was considered binding after the expiration

date. Obviously, had the decision by the Senior Justice been given at the appellate level,

the decision in BIEMSU v GBPC would not have been merely instructive but would

have been considered a binding precedent.

33. The appellant also took issue with the learned judge’s construction of section 46(2) of the IRA. In paragraph 81 of her judgment the learned judge found:

“ In light of the mandatory provisions in section 46(2) of the

IRA, clause 14.1 aforesaid did not, nor could it have the effect of

legally extending the life of the 2000 industrial beyond the

expiration clause of the five year express time”

34. Counsel for the appellant argues that the provisions of section 46 should have been construed as permissive. The respondent Counsel maintains that the learned judge’s

conclusion that 46(2) is mandatory as is entirely consistent the provisions of the

Interpretation and General Clause Amendment Act. We agree.

Grounds 3 and 5- The learned judge was wrong to find that a registered industrial agreement

had to be in force in order for respondent to be able to rely upon it for its implicated terms and

failed to consider the effect of provisions of the IRA as to implicated terms of an employment

contract. The learned judge was wrong to find that the terms of the industrial agreement were

neither expressly nor impliedly incorporated into the plaintiff’s individual contract of

employment with the defendant.

18

35. The appellant’s submission was that Parliament neither expressly or by implication when it enacted the IRA and the EA had as one of its purposes eliminating or abrogating

contracts of employment based on an employer/employee relationship as then existing at

common law for breach of terms of which the parties had the right to pursue the

appropriate remedy in the Courts. Thus he contends that it is trite that individual contracts

of employment' exist distinctly from industrial agreements arrived at between employees’

bargaining agents (on their behalf) and their employers by process of collective

bargaining. Further he says that thus Mr. Brown’s individual employment contract with

the respondent was not subordinated or abrogated by the Agreement upon its registration

prescribed by sect. 50 of the IRA.

36. Section 50 states :

“50. An industrial agreement under section 46 shall have effect

only if it is registered by the Tribunal in accordance with

section 49.”

37. Counsel further submitted that section 4 and section 77(2) of the EA are not in conflict with each other and therefore Parliament’s purpose in enacting the two provisions must

be given effect to in adherence to this principle of harmonious construction. He

contended that sect.

38. Section 77 (2) states the following:

“(2) This Act shall not apply to any industrial agreement registered with the

Tribunal on the coming into operation of this Act but shall apply on the

expiration of such an agreement.”

39. Counsel further contended that 77(2) as matter of construction does not, on a plain reading, support an interpretation precluding continuing existence and enforceability of

individual employment contracts, upon expiration of the registered industrial agreement,

by bargaining unit employees alleging wrongful termination or unfair dismissal against

his or her employer. Parliament he says, did not intend that sect. 77(2) be employed as

guillotine in the event of expiration of registered industrial agreement, even when it

contained no provision for its extension.

40. In response counsel for the respondent argued that the learned judge did not make finding that the Agreement had to be in force at the time of the appellant's dismissal in order for

him to be able to rely upon it for ‘implicated terms’. He submitted that in this ground, the

appellant has unfortunately mischaracterized the learned judge’s finding. He notes that

the learned judge held that the terms of an industrial agreement may be incorporated into

an employee’s individual contract of employment, either expressly or by implication, provided that such incorporation is done during the currency of the relevant industrial

agreement.

19

41. A review of the learned judge’s decision reveals that the respondent’s submission on this point is correct. At paragraphs 91-92 she stated as follows:

“92. Having regard to the decision of Hutchison, which was

cited with approval by Jones in the Cable Beach case, counsel

for the defendant submits that as there is no evidence in this

case that the parties intended the terms of the registered

industrial agreement to be incorporated, either expressly or by

implication, into the individual contracts of employment, the

plaintiff’s argument that clause 14.1 aforesaid had the effect of

incorporating the terms of the 2000 industrial agreement into

the plaintiff’s contract of employment with the defendant

should be rejected.

93. It is accepted that the terms of an industrial agreement may

be incorporated into an employee's individual contract of

employment either expressly or by implication‘ provided that

such incorporation is done during the currency of the relevant

industrial agreement. See the Hutchison and Cable Beach cases

supra; National Coal Board Galley supra and Robertson

Jackson British Gas Corporation supra”.

42. Thereafter, the learned judge considered the evidence adduced at trial and rightly decided at paragraphs 93-99 of the judgment that there was no evidence to support a finding that

the terms of the expired agreement were incorporated into the appellant’s individual

employment contract with the respondent. This ground in our view should also be

dismissed.

Ground 4- Section 4 paragraph (a) and (b) of The Employment Act

43. We have decided to address this ground, which also ties in closely with grounds 3 and 5 in respect to express and implied terms, separately in order to deal strictly with the

Employment Act.

44. In this ground the appellant argued that by operation of the Employment Act Section 4A and B the express or implied incorporation of terms did not arise in the individual

employees contract of employment and that the learned judge should have addressed

whether the parties had agreed to disapply the provisions of the Employment Act to the

employment relationship.

45. Section 4 A and B states:

“4. The provisions of this Act shall have effect notwithstanding

any other law and notwithstanding any contract of

20

employment, arrangement or custom (being a contract of

employment, arrangement or custom made or in being

whether before or after the commencement of this Act) so,

however, that nothing in this Act shall be construed as limiting

or restricting

(a) any greater rights or better benefits of any employee under

any law, contract of employment, arrangement or custom;

(b) the right of any employee or trade union to negotiate on

behalf of any such employee, any greater rights or better

benefit…”

46. The respondent contends that this ground, like ground 1, was neither pleaded nor argued in the Court below and in any event there was nothing which precluded the respondent

from dismissing the appellant without notice and compensating him in accordance under

the provisions of Section 29 of the Employment Act which provides for the respondent to

terminate the appellant with notice.

47. We have dealt at length with parties raising issues not pleaded above in ground 1 and find no reason to be repetitive regarding this issue.

48. Accordingly, this ground 4 fails.

Conclusion

For the foregoing reasons we were of the view that this appeal had no merit and ordered that it

should be dismissed with costs to be paid by the appellant to the respondent. Such costs are to be

taxed if not otherwise agreed.

The Honourable Mr. Justice Evans, JA

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA