“C9(1) An employer may, without advance notice, terminate the employment of any person who has engaged in misconduct related to his work within the limitations of section C59(1) or (2). … C56 Every employee whose probationary period with an employer has ended shall have the right not to be unfairly dismissed by his employer; and no employer shall dismiss any such employee without just cause. … C58(1) A dismissal shall not be unfair if the reason assigned by the employer therefor - (a) relates to misconduct of the employee on the job, within the limitations of section C59(1) and (2) … Provided, however, that there is a factual basis for the assigned reason. (2) The test, generally, for deciding whether or not a dismissal was unfair is whether or not, under the circumstances, the employer acted unreasonably or reasonably but, even though he acted reasonably, if he is mistaken as to the factual basis for the dismissal, the reasonableness of the dismissal shall be no defence, and the test shall be whether the actual circumstances which existed, if known to the employer, would have reasonably led to the employee’s dismissal. C59(1) An employer may terminate the employment of an employee where the employee has been guilty of misconduct in or in relation to his employment so serious that the employer cannot reasonably be expected to take any course other than termination. Such misconduct includes, but is not limited to, situations in which the employee has - (a) conducted himself in such a manner as to clearly demonstrate that the employment relationship cannot reasonably be expected to continue; …”
“9(1) In the hearing and determination of any matter before it, the court may act without regard to technicalities and legal form and shall not be bound to follow the rules of evidence stipulated in the Evidence Act, but the court may inform itself on any matter in such manner as it thinks just and may take into account opinion evidence and such facts as it considers relevant and material, but in any such case the parties to the proceedings shall be given the opportunity, if they so desire, of adducing evidence in regard thereto. … 10(3) Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall - (a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole; (b) act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations and, in particular, the Antigua and Barbuda Labour Code. … (6) The opinion of the court as to whether an employee has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice and any order for compensation or damages including the assessment thereof made pursuant to subsection (5) shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any account whatever. … 17(1) Subject to this Act, any party to a matter before the Court shall be entitled as of right to appeal to the Court of Appeal on any of the following grounds, but no others - … (d) that any finding or decision of the court in any matter is erroneous in point of law; … (3) The Court of Appeal may in any matter brought on appeal before it, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred although it is of the opinion that any point raised in the appeal might have been decided in favour of the appellant.”
“(a) Any adverse report on a Pilot shall be brought to the attention of the Pilot concerned and if such report is made in writing, the Pilot shall be invited to make his comments in writing … (b) In the event that, as a result of an adverse report, the Company contemplates disciplinary action, then the Pilot concerned must be given an opportunity to exculpate himself in writing before Disciplinary Action is taken by the Company.”
“On 6 and 20 November you were broadcast on Observer Radio’s Big Issues Programme. You were highly critical of the company’s actions and policies. We are particularly concerned about your statements made about the quality of the airline’s safety and members of senior management, some of which, we have been advised, may be defamatory. Some of the inappropriate statements made by you during these broadcasts are reproduced below and the company reserves the right to rely on and produce the entire broadcasts in any subsequent legal proceedings. On 6 November on the said radio programme you stated, inter alia: There is a confrontational group within LIAT, an unqualified confrontational group, even within Personnel, even within HR. I know there is conflict because, Ms Ramsey doesn’t, I don’t believe she’s an educated person. There are management people in my department who have absolutely no qualifications in aviation. There is not one single person in my management that is qualified to make the decisions they are making. Management includes such posts as a Manager of Catering where LIAT has no catering. Further on 20 November on the said radio programme you stated, inter alia: Let me put it to you now as a professional pilot … I am one of the most senior pilots … LIAT right now is not as safe as it was when we had two … and I am talking … I represent the training Captains … I am the sole spokesman of all the pilots … The standards of safety and operations that we have now are not better and if anything, are less than we had when Captain Murray and Captain Lake alone were running the flight operations department. Your statements have crossed the line beyond what is permitted of a union leader and a senior employee of LIAT. We have been advised the statements amount to misconduct as defined by the Labour Code of Antigua and Barbuda. In that regard: The statements made about Miss Ramsey were very derogatory and would tend to undermine corporate and public confidence in her competence to manage the Human Resources Department of LIAT and would tend to subject her and in particular her professional reputation to opprobrium and disrepute; The statements made about ‘management’ would tend to undermine corporate and public confidence in the competence of the flight operations department; The statement concerning catering is wholly untrue. The Manager of In-flight services and catering has direct responsibility for all Cabin crews. Further, you are aware that the company offers refreshments to passengers on early morning and late night flights, and to pilots throughout their flight rotation; The statements about the airline’s safety made on 20 November would tend to undermine public confidence in the safety of LIAT. Your employment is accordingly terminated, with immediate effect. The dismissal is on the grounds of misconduct which is so serious that LIAT cannot reasonably be expected to take any course other than termination. You have conducted yourself in such a manner as to clearly demonstrate that the current employment relationship cannot be expected to continue.”
“The court has no reason to doubt the authenticity of the transcripts. However, your client is at liberty to compare them with the actual recording and let the court have his objections and comments, if any.”
“As a matter of law, the Employee ought not to be obliged to produce, at this stage, any document upon which there is no opportunity to cross-examine or be cross-examined. In any event, the Employee was already cross-examined extensively by the Legal Representative of the Employer at the 24 November hearing. The said interviews, the transcript for which is now being introduced, had supposedly formed the basis of the Employer’s decision to dismiss the Employee. Notwithstanding that, the Employer had failed to submit the transcript or any part of it at the hearing on 24 November.”
“You should recall that in an effort to fully inform itself of the pertinent matters, the Court requested copies of audio recordings of 6 November and20 November 2011 . In that regard, partial electronic disclosure was made by the Employer on20 June 2016 . Unfortunately, despite my repeated requests to both parties, the recordings for20 November 2016 were not filed by the Employer until12 September 2016 . You should appreciate that the precise utterances of the Employee and the context in which they are made are paramount for the just determination of the issues arising in the Reference. Now that we are in possession of both recordings the court will endeavor to advance the matter as some [sic] as practicable.”
“We believe that the objection was misguided. The court’s position in relation to the Employer’s application to reopen which was heard on14 January 2016 , is set out at paras 72 to 79 above. In light of our said determination of that application and having regard for the court’s power to obtain evidence at its own initiative, as we had done, and having particular regard for the opportunity extended by the court to the Employee by letter dated27 January 2016 , to be at liberty to compare the transcripts with the actual recordings and submit its objections and comments, we find no merit in the Employee’s objection to the admission of the transcripts.”
“111. At the end of the day, we find that on the evidence disclosed in the transcripts and audio recordings, subject to the proper administration of the established fair procedure, the Employee was guilty of misconduct which was serious enough to potentially justify his dismissal. 112. Having regard to the Employer’s burden (see paras 52 and 53 above) in these proceedings to prove that the dismissal was not unfair on a balance of probabilities, it is doubtful that the potential good cause could crystalize into an actual good cause in the absence of any evidence from the Employer. 113. On the facts of this case, we do not consider it necessary to finally determine this issue in isolation. In considering the potentially good cause in the absence of any evidence from the Employer, we are of the opinion that we must also consider the summary nature of the dismissal. Whether the misconduct was serious enough to justify summary dismissal 114. Given the principles of natural justice, the question arises as to whether the Employee was entitled to an opportunity to be heard in his own defence before being dismissed. Automatically, his long tenure and position as Chairman of his union would have to be taken into consideration. It would be open to the Employer to contend that it was not necessary to give him such an opportunity because it would have made no difference to the final outcome. 115. Even in the absence of the pertinent provisions of the Collective Agreement, the burden would be on the Employer to prove that summary dismissal was warranted in the circumstances. To that end, as outlined at para 54 above, it would have to present ‘cogent and weighty’ evidence to convince this Court, on a balance of probabilities, that the misconduct was sufficiently serious or gross to justify summary dismissal. 116. In this case, the terms of the Collective Agreement, reproduced at paras 48 to 51 above, operate to significantly increase the evidentiary burden on the Employer. There is no doubt that article 1 of section XIII gives the Employee the right to be told of any adverse report against him and to be provided with a copy of the same if it is in writing. Further, where the Employer contemplated disciplinary action, as it did in this case, the Employee had the right to an opportunity to exculpate himself before disciplinary action is taken. 117. Clearly, the Employer’s general evidentiary burden to prove that a dismissal was not unfair is substantially heavier because the Employee was summarily dismissed. In our view, that substantially heavier than normal burden thrust on the Employer is made even heavier by virtue of the peculiar facts and circumstances of this case. In the circumstances, the Employer’s failure to advance ‘cogent and weighty’ evidence or any evidence at all in these proceedings may be fatal. 118. Notwithstanding our inclination towards the resolution of this issue and the preceding one in favour of the Employee, we will refrain from doing so at this stage. Instead, we will move on to consider the third issue regarding the reasonableness or unreasonableness of the dismissal. In our view, the result of the test of reasonableness, as required under section C58(2) of the Code, will be the ultimate determining factor. Whether, in the circumstances, the Employer acted reasonably or unreasonably in dismissing the Employee 119. In some cases, the absence of a fair procedure may not, by itself, render a dismissal unfair. In other words, the adoption of a fair procedure would nevertheless lead to a dismissal which is not unfair. In other cases, a fair procedure could make a significant difference in the outcome. The question at his point is: In which of the two categories does the Employer’s actions fall? 120. Apart from its failure to discharge its evidentiary burden, we are of the opinion that, in any event, the breach of the Employer’s clear contractual obligation to follow the agreed procedure, reinforcing its commitment to abide by the principles of natural justice, was sufficient by itself to render the dismissal unfair in the circumstances. 121. In relation to the Employer’s clear breach of its specific contractual obligation to give the Employee the opportunity to exculpate himself, we are mindful of the Employee’s testimony that (a) there were factual bases for his statements (b) the Employer failed to take two pauses into consideration in relation to his comment about Ms Ramsey (c) the representation of some of his comments in the dismissal letter were taken out of context and / or inaccurate and / or misleading. 122. Further, we also note the Employee’s testimony that the overall objective of his statements was to advance better working conditions for members of his union. In our view, such an explanation, if made earnestly, together with other possible mitigating factors, could possibly have tempered the severity of the Employer’s reaction. 123. It is also noteworthy that, although it came a few days after his dismissal, the Employee had offered to clarify his comments, withdraw them and / or apologize for the same. In the circumstances, we will never know whether the Employee would have demonstrated a genuinely contrite, remorseful and apologetic attitude if given the opportunity and whether the same would have made a difference in the final outcome. 124. We have also considered the actual process and timing of the dismissal. In that regard, the evidence is that the Employee was dismissed on5 December 2011 in Barbados, two weeks after the second broadcast of his offending statements and one month after the first. In order to be in a position to deliver the letter, the Employee was called out to work while he was on ‘reserve duty’ and summoned to the office of the Employer’s Station Manager where the dismissal letter was delivered to him by the Employer’s Director of Human Resources who, in the presence of three other senior executives, told him that he was being dismissed with immediate effect. 125. On the facts, we believe that it is fair to surmise that the Employer spent the time between the misconduct and the dismissal to investigate the matter and / or obtain and analyze the audio recordings and / or transcribe the recordings and / or deliberate its options for disciplinary action against the Employee. Whatever its reasons for the delay, we find it unreasonable to effect the dismissal in the manner and at the time when it did. 126. At the end of the day, we find that, in the circumstances, following a fair procedure generally and providing the Employee with the opportunity to be heard in particular could have made a difference in the Employer’s deliberations before the dismissal. 127. When we apply the test of reasonableness, having carefully taken into consideration all the other relevant statutory provisions, legal principles, contractual obligations, the Employee’s evidence and the Employer’s undischarged evidentiary burden, we are constrained to find that the Employee was unfairly dismissed. He was dismissed in blatant contravention of the rules of natural justice and in breach of the principles of good industrial relations. The Employer acted unreasonably in the circumstances when it dismissed the Employee. 128. In the premises, the Employee was unfairly dismissed and is entitled to compensation to be assessed.”
“137. As stated above, after careful consideration of the dismissal letter, the transcripts and the audio recordings of the Employee’s statements, we found that the Employee was guilty of misconduct, which was a potentially good cause for dismissal. In particular, we are inclined to accept the Employer’s view, as expressed in the dismissal letter that the Employee’s statements did or were likely to do harm to the professional reputation of and public confidence in the Employer’s senior management team and its business as a whole. Moreover, we find that the Employee’s misconduct was more conspicuous and at least more potentially embarrassing and harmful by virtue of his emphasized position as Chairman of LIALPA. 138. Our said conclusion was obviously not based on the Employer’s case which was non-existent in this Reference. However, having regard to our mandate under section 10(3) of the Act we felt compelled to fully inform ourselves of and be guided by the said best evidence of the Employee’s statements, as we did. 139. The facts of this case disclose that the Employee contributed significantly to his dismissal. In the exercise of our discretion and doing the best we can with the evidence before us, we assess his contribution at 65%. His compensation, to be assessed, will be reduced accordingly.”
“Natural justice or basic fairness required that the Industrial Court in its determination of the issues that were before it, act only on the evidence that was adduced. While we are mindful of the fact that it was open to the Industrial Court to determine the procedure for the trial, we have no doubt that it could not seek to obtain evidence on its own volition after the close of the trial. Leaving aside any question of the admissibility of the audio recordings and transcripts, we have no doubt that procedural fairness required the Industrial Court to refrain from including evidence on its own volition (without any application being made) and more critically from relying on those audio recordings and transcripts to reduce the compensation to which Mr Blackburn was entitled. In our view, it is trite that at the very least Mr Blackburn ought to have been afforded the opportunity to be heard in relation to the transcripts and audio recordings and this is so whether or not he had admitted to having made the majority of statements. It is even more egregious in circumstances where, as obtained in the case at bar, he had specially filed a notice of objection to the transcripts being admitted into evidence. Despite how well intentioned the Industrial Court was in seeking to obtain ‘the best evidence possible’, it acted in clear breach of natural justice.”
“It follows therefore that section 10(6) is to be read together with and given effect to as a proviso to section 18(2). In my opinion this conclusion is fortified by the fact that section 10(6) occupies a special place in the earlier part of the Act and to all appearances has been deliberately inserted there to put it beyond doubt that appeals will not be allowed against the court’s opinion in what is manifestly a highly specialised area of industrial relations, namely, whether or not a worker has been dismissed in circumstances that offend against the principles of good industrial relations practice or are otherwise harsh and oppressive. Consequently, if an appellant is unable to rely on any of the statutory grounds of appeal specified in section 18(2) then he is barred from appealing altogether since the Act prohibits him from relying on any other ground. If however he is able to rely on one or other of those statutory grounds he will nevertheless be barred from appealing if the only ground of appeal on which he relies involves a challenge against an opinion of the court given in pursuance of section 10(6). This is an unusual provision by which to bind the Court of Appeal; but it is manifestly a sensible and logical one since members of the Industrial Court are normally selected for appointment thereto by reason of their specialised knowledge and experience in industrial relations and related matters. It is only right therefore that their opinion, duly formed on a question arising in such a specialised area of human relations should be final and not subject to review or recall by members of the Court of Appeal who would normally have no such knowledge or experience.”
“It does not matter whether the party challenging the decision of the Industrial Court on this issue claims, not merely that the decision was against the weight of the evidence, but goes further Page 20 and claims that no reasonable judge properly directed could have come to the same conclusion, having regard to the evidence. In the latter case, the ground of appeal has graduated from a question of fact to a question of law; but it is nonetheless barred by the prohibition contained in section 10(6). This is not to say that a decision of the Industrial Court as to whether a dismissal is harsh and oppressive is so sacrosanct that it can never be challenged on any ground whatever. If, for instance, there has been some procedural irregularity which involves a breach of the rules of natural justice, then clearly an appeal would lie to the Court of Appeal, notwithstanding section 10(6). In such a case it would be the process by which the Industrial Court reached its opinion and not the opinion itself, that was challenged. It is unnecessary and indeed dangerous to try to enumerate all the circumstances in which an appeal would lie to the Court of Appeal against the decision of the Industrial Court in a trade dispute over the dismissal of a worker. The answer in broad terms is whenever the appellant can rely on any of the grounds mentioned in section 18(2) without running foul of the prohibition contained in section 10(6). What this means in practice will have to be determined on a case-by-case basis.”
“is this one of those rare cases where a reasonable employer could properly take the view that whatever the employee might say would make no difference?”
“the court may inform itself on any matter in such manner as it thinks just and may take into account opinion evidence and such facts as it considers relevant and material …”
“we have no doubt that it [ie the Industrial Court] could not seek to obtain evidence on its own volition after the close of the trial”