Ramsahoye v Caribbean Meteorological Organisation

• Jurisdiction: Barbados
• Judge: Williams, J.
• Judgment Date: 26 March 1986
• Neutral Citation: BB 1986 HC 25
• Docket Number: No. 38 of 1985
• Date: 26 March 1986
• Court: High Court (Barbados)

High Court. (Civil Jurisdiction)

Williams, J.

No. 38 of 1985

Ramsahoye

and

Caribbean Meteorological Organisation

Mr. H. deB. Forde, Q.C., and Mr. G.C. Turney of Messrs. R.G. Mandeville & Co. for the plaintiff.

Mr. O.M. Browne, Q.C. and Mrs. M. Mahabir of Messrs. Carrington & Sealy for the defendants.

Pension - Contract of service — Pension trust deed — Plaintiff retired for ill health claiming the benefit of rule 20 of the 1978 Pension Scheme which was in force at the commencement of his employment — Plaintiff sought a declaration that rule 22 of the superannuation benefit provisions which was applicable to resignations was not applicable to him — Whether retroactive amendment of rule 20 was invalid since there was no discussion with the employees by the trustees — Plaintiff held entitled to benefit of unamended scheme.

Trust and trustee - Pension trust deed — Whether deed validly amended — Trustees purported to amend Rule 20 of a trust deed to decrease pension payable to employees of the employing institution from one half to one quarter of the minimum yearly pension — Finding by court that the deed was not validly amended because under rule 4 of the trust deed it was incumbent on the trustees to have dialogue with the employees and this was not done — Discussion with trade union held to be no substitute — Amendment held invalid.

Williams, J.

1 The Caribbean Meteorological Organisation (“the Organisation”) is a body corporate established by the Caribbean Meteorological Organisation (Incorporation) Act Cap. 15 C of the Laws of Barbados and has its headquarters in Trinidad and Tobago. It is admitted that the Caribbean Meteorological Institute (“the Institute”) of Husbands, St. James is an organ, and subject to the direction and control, of the Organisation and that in this case the Organisation acted at all material times through the Institute.

2 By letter of July 14, 1978 the Chairman of the Board of Governors of the Institute made an offer of employment to the plaintiff Lyttleton Ramsahoye who was then Professor of Physics at the University of Guyana. Ramsahoye was offered appointment as Research Co-ordinator at the Institute. He accepted the offer on August 25, 1978 and assumed his duties on September 1, 1978.

3 The following was among the terms offered to, and accepted by, the plaintiff:–

“Appointment on the staff of the Institute is subject to such rules and regulations as may be established from time to time by the Board of Governors of the Institute and to participation in such superannuation schemes as may be in force …….”

4 A Pension Scheme for members of staff of the Institute had been under consideration before the plaintiff took up his appointment on September 1, 1978; and a memorandum dated April 26, 1979 was circulated to members, the plaintiff being informed that September 1, 1978 was his date of entry into the Scheme. The memorandum stated in part:–

“The purpose of this circular note is to inform members of staff of the progress made so far with the Caribbean Meteorological Institute Pension Scheme.

The date of commencement of the Scheme or the effective date of the Scheme is 1st July, 1974. The commencement date of contributions for staff members, who were previously on contract, will be the date of service immediately subsequent to the period in respect of which contract gratuity had been paid. For staff members not previously on contract the date of commencement will be-the date of entry into the service after 1 ^st July 1974…

The Scheme is a contributory one to which each member contributes 5% of salary and the Institute 10%. The entire 15% contribution is, however, presently being met by the Institute to cover the period between 1 ^st July 1974 and the implementation date.

Thereafter in accordance with the Decisions of Council XIV and XV, salaries will be increased by 5% to offset the shortfall of salary which would result from member's 5% of salary contribution. The Institute's contribution would then be confined to 10% of salary.

After commencement date, enrolment is compulsory for all employees appointed to permanent posts in the service of the Institute who have attained the age of 18 years and are less then 55 years except for employees, engaged on specific contractual terms ……

The trustees of the Scheme are the Principal of the Institute, the Barbados Government Representative on the Board of Governors and a representative of the Caribbean Meteorological Institute Division of the Barbados Workers Union.

The Scheme will be administered by the Institute And the Barbados Mutual Life Assurance Society will, for the time being, have responsibility for investing the Fund on the direction of the Trustees …..

……. A draft Trust Deed is with the Trustees and the Chairman, Board of Governors for examination before execution.”

5 The Trust Deed was made on March 23, 1981 and Fozlo Brewster, Col in Depradine and Basil Rocheford executed it as the Trustees. Brewster was the Barbados Government representative on the Board of Governors, Depradine the Principal of the Institute and Rocheford the representative of the Caribbean Meteorological Division of the Barbados Workers Union. These three gentlemen are, with the Organisation, the defendants in this action. Under Clause 2 of the Trust Deed the Institute covenanted with the Trustees to observe and perform the provisions of the Trust Deed and the rules as altered from time to time.

6 Under Clause 3 the Institute established with the Trustees a Trust Fund consisting of such sums of money and such property acceptable to the Trustees as should from time to time be paid or delivered to the Trustees and the earnings and profits on all such money and property.

7 Clause 4 provides that the Trustees shall hold the Fund upon trust to apply it in or towards the provision of pensions and other benefits payable under the Scheme and shall deal with the Fund in accordance with the provisions of the Trust Deed. No part of the Fund is at any time to be used for or diverted to purposes other than those pursuant to the rules of the Scheme.

8 The clauses of the Trust Deed which fall to be construed are in these terms:–

20

Every discretion or power hereby conferred on the Trustees shall be an absolute and uncontrolled discretion or power and no trustee shall be held liable for any loss or damage occurring as a result of his concurring or refusing or failing to concur in the exercise of any such discretion or power except due to willful misconduct or lack of good faith ….. 24 (1) The Institute may at any time and from time to time with the consent of the Trustees by deed alter any of the trusts powers or provisions of the Trust Deed or the rules and any such alteration shall have effect from such time as may be specified in the deed whereby the same is effected and so that the time so specified may be the date of such deed or any reasonable time previous or subsequent thereto so as to give the alteration retrospective or future effect. (2) Provided that no alteration of the Trust Deed or the rules under the clause shall: (a) authorize or permit, at any time prior to the satisfaction of all liabilities with respect to the members and their beneficiaries under the Scheme, any part of the Fund to be used for or diverted to purposes other than those provided for under the terms of the Scheme and clause 18 hereof. (b) extend the duration of the Fund in such manner that any interest therein might not vest within the maximum period permitted by law.”

9 Clause 18 makes provision for the payment from the Fund of the Trustees' expenses and fees and of any taxes payable in respect of the Fund. The rule which is central to the point in issue in this case is in these terms:–

20 A member who retires through ill health before attaining normal retirement age having completed not less than five years of pensionable service, shall be entitled to a yearly pension commencing on the date of his retirement and payable during the remainder of his life by equal monthly installments on the last working day of each month with apportionment from date of death in respect of the last installment. The amount of such yearly pension shall be computed on such member's pensionable salary and pensionable service at the date of his retirement in accordance with the provisions of and subject to the limitation contained in rule 17 thereof. Provided, however, that such member shall be entitled to a minimum yearly pension of one half of his pensionable salary at the date of his retirement. A member or pensioner entitled to or in receipt of a pension under this Rule shall, whenever required by the Trustees, submit himself for examination of the Medical Board for the purpose of determining whether or not he is permanently incapacitated for work by reason of ill health. If the member or pensioner refuses or fails to submit himself to any such examination or in any way obstructs the same, he shall not be entitled to receive his pension until such examination has taken place.”

10 In rule 2 “ill health” and “the Medical Board” are defined thus:–

““Ill Health” means bodily or mental incapacity or physical infirmity which in the opinion of the Medical Board will prevent otherwise than temporarily the member concerned from carrying out any duties which the Institute may reasonably assign to him having regard to the duties carried out by him immediately before so becoming incapacitated or infirm ……….

“The Medical Board” means the members of the standing panel of medical practitioners from time to time appointed for the purpose of the Pension Scheme.”

11 Rule 22 is in these terms:–

22

Subject to the provisions of rule 28, if before a member becomes entitled to a pension under any of the preceding Rules, a member resigns from the service of the Institute and does not at that time enter the service of the Government of any...