Eastmond v Rayside Concrete Works Ltd
| Jurisdiction | Barbados |
| Judge | Williams, C.J. |
| Judgment Date | 08 November 2012 |
| Neutral Citation | BB 2012 CA 12 |
| Docket Number | Civil Appeal 18 of 2003 |
| Court | Court of Appeal (Barbados) |
| Date | 08 November 2012 |
Court of Appeal
Williams, C.J. (Ag.); Mason, J.A.;Burgess, J.A.
Civil Appeal 18 of 2003
Mr. Bryan Weekes of Weekes Kissoon Deane for the appellant.
Mr. Leslie Haynes, Q.C. for the respondent.
Employment - Contract of service — termination — Severance payment.
Williams, C.J. (AG.): This case has an unfortunate history. Mr. James Eastmond (Eastmond), the appellant, was employed as a truck driver for 15 complete years with Rayside Concrete Works Ltd. (Rayside), the respondent, prior to the cessation of his employment over 20 years ago. The appellant was unsuccessful in his claim for compensation against the respondent both before the Severance Payments Tribunal and in the High Court. Nine years ago he appealed to this Court. Resolution of the appeal requires a careful examination of the facts and the proceedings in order to arrive at a decision that is just to the parties.
Eastmond was employed by Rayside from 2 December 1976 to 8 April 1992. He was “laid off' for 6 weeks between December 1976 and February 1977 when he returned to work. This fact was mentioned by the appellant in his evidence but has no bearing on the case except that there was no evidence of his being laid off at any subsequent time. He worked continuously from 1977 to 1992.
On 8 April 1992, Mr. Walcott (presumably the manager or supervisor of Rayside) told Eastmond that as the truck was “down” (the axle was broken) he had to go home. Mr. Walcott told him to go to the National Insurance Office and that when Rayside “got another truck” the company “would call” him. He was evidently given a Termination of Services/Lay-Off Certificate, which was stamped by the National Insurance Office dated 21 April 1992. The Certificate is the means by which a claim for unemployment benefit is made. The employer is required to state the “reason for unemployment” and the “expected date of re-employment”. Rayside stated in answer that the truck was “under repairs” and that the date of re-employment was “indefinite”.
On 13 July 1992, Eastmond wrote a letter to Rayside stating that on 8 April 1992 he “was laid off from work” and had not since been re-employed. He was therefore claiming a severance payment. Rayside did not reply to the letter.
On 7 April 1993, Eastmond wrote a second letter to Rayside stating that on 8 April 1992 his “employment was terminated” and that in the circumstances he was claiming a severance payment. Rayside did not reply to the letter.
Eastmond filed Case No. 508/253/96 (date not stated) against Rayside before the Severance Payments Tribunal claiming a severance payment. The first hearing before the Tribunal took place on 5 November 1996, four years after the cessation of Eastmond's employment. The reason for the delay was never explained. The Tribunal comprised the Chairman, Mr. C. E. Lashley (subsequently Q.C.), Mr. P. Parris and Mr. C. Murrell. Eastmond was not represented at this hearing and apart from the basic facts given above no attempt was made by the Tribunal to obtain from him evidence on the details of his work with Rayside and the operations of the company with particular reference to the circumstances surrounding the cessation of his employment. Eastmond did say that the truck was repaired but that someone else was driving it; no evidence was given as to the time when this took place. No one appeared for Rayside at the hearing. The case was adjourned to 11 December 1996 for Mr. Edgar Norville to appear for Rayside; his position in the company was never stated. On 11 December 1996, Mr. Norville did not appear and the hearing was again adjourned to 4 February 1997 for him to be re-summoned.
On 4 February 1997, Mr. Norville did not appear in spite of the fact that he was summoned with a warning. The hearing was yet again adjourned to 11 March 1997. The Chairman stated significantly:
“We have a problem here, Mr. Eastmond, we are trying to find out whether you were laid off from your job in 1992 or whether you were dismissed”.
It is the contention of this decision that though the Chairman identified the issue that the Tribunal had to decide it was never investigated so as to arrive at an informed decision on the same.
On 11 March 1997, Mr. Norville again did not attend and the hearing was adjourned to 22 April 1997 when Mr. Norville did attend. However, on this occasion the Tribunal was not fully constituted as Mr. Murrell was absent and no formal evidence was taken. Nevertheless, Mr. Norville did say that he knew that the appellant worked “some time” for the respondent and that he searched for the appellant's lay-off certificate but could not find it. The matter was adjourned to 13 May 1997.
On 13 May 1997, Mr. Norville did not appear but the parties for the first time were represented by counsel; Mr. Bryan Weekes for Eastmond and Miss Elneth Kentish (subsequently Q.C.) for Rayside. There is no record of the Tribunal making an inquiry in relation to the absence of Mr. Norville although it had adjourned the matter on five occasions for him to give evidence.
Mr. Weekes requested to be heard, but the Chairman stated that the case had “run its course” and that the Tribunal had decided to give its decision on that date. The Chairman said:
“According to the Act, the limitation period has long passed…Mr. Eastmond, we have to dismiss your case because you have filed out of time. You should have brought your contract to an end. Case dismissed.”
The Tribunal subsequently gave lengthy and different written reasons for dismissing the claim.
The written decision of the Tribunal accepted uncritically that Eastmond had been laid off. The Tribunal held in the circumstances that he had not complied with section 6(3)(a) of the Severance Payments Act, Cap. 355A (the Act) by serving a notice of intention to claim and in particular by not formally terminating his contract of employment. The Tribunal concluded its reasons for dismissing the application by stating the following:
“On the facts there was no termination for redundancy on 8 April 1992. At that time, THE CONTRACT between the employer and the applicant WAS SUSPENDED because the truck was undergoing repairs. The Lay-Off Certificate states that there was no dismissal. It was therefore left to the applicant to terminate his contract in accordance with the provisions of subsection 3 of section 6. Having failed to do this, the application cannot succeed. This issue alone disposes of the case.” (Emphasis added.)
The Certificate did not state that there was no dismissal; it stated that Eastmond was not dismissed because of misconduct.
Without elaborating, this Court has obvious concerns about the hearing by the Tribunal. Eastmond was not questioned in any meaningful way in relation to the cessation of his employment. Further, no evidence was given on behalf of Rayside; Mr. Norville appeared when the Tribunal was not properly constituted and never returned to give evidence.
The Tribunal was content in its oral reasons to dismiss the application on the basis that it was filed out of time. However, the written reasons of the Tribunal stated that the application was filed in time. We should state that this was not an issue in the appeal. The written reasons of the Tribunal were based on the non-compliance by Eastmond of the formal requirements of the lay-off provisions in section 6(3)(a) of the Act. On that basis it was essential for a representative of Rayside to have given evidence in order for the Tribunal to objectively determine the reason for the cessation of employment.
On 13 July 1997, Eastmond being dissatisfied with the decision of the Tribunal appealed on a question of law to the High Court under section 39 of the Act by Notice of Originating Motion in compliance with Order 56 of the Rules of the Supreme Court, 1982 (RSC). There is no explanation for the fact that the case was not heard until 6 March 2000. Mr. Weekes for the appellant made the same submissions to the High Court that he made to this Court, which we discuss in greater detail below. In essence he submitted that “the appellant had been constructively dismissed within the meaning of the Act by having been laid off by the respondent for an unreasonably long time”. He did not agree that the appellant was laid off and was not relying on the lay-off provisions. Miss Kentish relied on the reasons of the Tribunal in that the appellant did not comply with the lay-off provisions in section 6(3)(a) of the Act by giving notice of the termination of his employment. On 2 October 2003, Greenidge, J. gave his decision. He (like the Tribunal) did not take into account the fact that no evidence was given on behalf of Rayside in opposition to Eastmond's application for a severance payment. He rejected the appellant's submissions and held that on the facts the appellant could not have been deemed to be dismissed by reason of redundancy; he agreed with the respondent's submissions that the appellant was laid off and that although he gave notice of his intention to claim a severance payment he did not also give notice to terminate his employment as required by section 6(3)(a) of the Act. He dismissed the appeal and ordered the appellant to pay costs.
The appellant's Notice of Appeal was filed on 30 October 2003. The ground of appeal was against the judge's holding that the appellant was entitled to a severance payment under the terms of the Act. We do not know the reason why the appeal did not come on for hearing until 2012.
Mr. Haynes Q.C. did not appear for Rayside in the High Court proceedings. He stated that he had been retained in the appeal shortly before the hearing on 16 March 2012, which continued on 30...
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