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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 2008


RSBD No. 9 of 2005

BETWEEN

DIAMONDTEX STYLE LIMIT ED APPELLANT

AND

NATIONAL UNION OF GOVERNMENT AND


FEDERATED WORKERS RESPONDENT

PANEL: A. Mendona, J.A.


P. Jamadar, J.A
R. Narine, J.A.

APPEARANCES: Mr. K. Garcia and Ms. V. Jaisingh appeared for the Appellant
Mr. M. Quamina and Mr. Bullock appeared for the Respondent

DATE OF DELIVERY: October 31st, 2011

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I agree with the judgment of Mendona J.A. and have nothing to add.

Jamadar, J.A
Justice of Appeal

I too agree.

Narine, J.A.
Justice of Appeal

JUDGMENT

Delivered by: Mendona, J.A.

1. On June 25th, 2005 the Appellant and three other companies, namely, Vale Company
Limited, Knight Investments Limited and Cadel Trading Limited (Cadel) entered into an
agreement by which the Appellant agreed, inter alia, (i) to sell to Cadel certain of its stock in
trade (ii) to sell certain of its real estate and (iii) in the mean time to grant a licence to Cadel to
occupy the said real estate together with a warehouse for the purpose of carrying on business in
connection with the sale of the stock and other similar items of trade and the warehousing
thereof.

2. By several letters also dated June 23rd, 2005 addressed to 72 of its workers the Appellant
terminated their services with effect from the date of the letters. The workers were informed by
the said letters that the Appellant had sold its Retail Fabric Business to Knight Investments
Limited and that that company was willing to reemploy them in its business immediately. The
workers were informed that the Appellant would be responsible for the payment of their
severance pay.

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3. By another letter also dated June 23rd, 2005 the workers were informed by Cadel that it
had acquired the ownership and operations of Diamondtex Stores and stated that all severance
for services until that date were to be paid by the Appellant and that Cadel was willing to offer
them employment effective June 24th, 2005.

4. The Appellant paid the dismissed workers severance pay calculated pursuant to the
provisions of the Retrenchment and Severance Benefits Act (the Act).

5. The Respondent union on behalf of the workers however reported a trade dispute to the
Minister, which related to the failure of the Appellant to give to the dismissed workers 45 days
prior notice as required under the Act or to pay wages in lieu of such notice. The dispute was
unresolved and was referred to the Industrial Court.

6. Before the Industrial Court, the Respondent in its Evidence and Arguments stated that the
Appellant severed the workers by letter dated June 23rd, 2005 and it paid them terminal
benefits in accordance with the Act on July 22nd, 2005. It was further stated that the severed
workers were offered employment with a new company, Cadel, but that the Appellant failed to
give the workers 45 days notice as required under the Act and had refused to pay them wages in
lieu of such notice.

7. The Respondent further contended that prior to and long before the sale of the business,
the Appellant had full knowledge that it would no longer be the owner of the business and had
the responsibility to inform the workers of such action and who the intended owner would be and
also to give the workers an opportunity to determine whether they would be willing to continue
being employees of the new owner or seek alternative employment. The Respondent, therefore,
sought an order requiring the Appellant to pay the required 45 days notice. There were other
claims made by the Respondent but it was acknowledged before the Industrial Court that they
were not properly within the dispute referred to the Court.

8. The Appellant in its Evidence and Arguments did not dispute that the workers were
retrenched. It contended, however, that the negotiations for the sale of the Appellants

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operations which resulted in the agreement referred to earlier, began on June 22nd, 2005 and were
concluded on June 23rd, 2005. It was agreed that workers employed by the Appellant would be
retrenched and paid severance benefits by the Appellant and that all employees would be offered
employment with the new owner on the same date. The Appellant further stated that all the
workers accepted such employment effective June 23rd, 2005, under increased terms and
conditions. The Appellant concluded by saying:

Therefore the matter falls under section seven of the act and no severance pay is
applicable.

9. Section 4(1) of the Act provides that an employer who proposes to terminate the services
of five or more workers for the reason of redundancy shall give formal notice of termination in
writing to each involved worker. Section 6 provides that the minimum period of notice shall be
45 days before the proposed date of retrenchment. Retrenchment is defined in the Act to mean
the termination of employment at the initiative of an employer for the reason of redundancy.
Redundancy is also defined in the Act and means the existence of surplus labour in an
undertaking for whatever cause. Section 7, on which the Company relied its Evidence and
Arguments, deals with the position where due to unforeseen circumstances the requirement to
give the minimum period of 45 days notice cannot be complied with by the employer. This
section is as follows:

7. Where, due to unforeseen circumstances it is not practicable for an employer


to comply with the requirements of section 6 with respect to formal notice, he
shall give the maximum notice that he can reasonably be expected to give in
the circumstances and the onus shall be on him to prove that the circumstances
that prevented him from complying with section 6 were indeed unforeseen.

10. The position of the Appellant as disclosed in its Evidence and Arguments was that the
workers were retrenched within the meaning of the Act, and, therefore, the workers were
terminated for reasons of redundancy, but the Appellant could not give the minimum period of
notice required under the Act due to unforeseen circumstances. The issue on the Evidence and
Arguments of the Appellant was whether there were unforeseen circumstances that made it

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impracticable for the Appellant to give the minimum period of notice required under the Act.
This was underlined at the outset of the matter before the Industrial Court. Mr. Cezair, an
industrial relations consultant, who appeared on behalf of the Appellant stated in his opening
arguments that the germane issue was the Appellants explanation for the failure to give notice to
the workers.

11. In closing arguments before the Industrial Court however, Mr. Cezair argued two main
points. He first submitted that there was no retrenchment within the meaning of the Act. He
argued that the decision of the Privy Council in Commercial Finance Company Limited v
Ramsingh-Mahabir (1994) 45 WIR 447 was applicable. In that case the Privy Council held,
inter alia, that retrenchment within the meaning of the Act assumed that the business of the
employer would continue to exist and that the termination of the employment of the worker was
on the initiative of the employer. He submitted that as the Appellants business ceased to
continue there was no retrenchment. He also argued that there were unforeseen circumstances
within section 7 which made it impracticable for the Appellant to give any notice to the workers
as provided for in sections 4 and 6 of the Act. He argued that the Appellant just did not have the
time within which to do so. Negotiations for the sale of the Appellants business began on one
day and concluded the next.

12. The Industrial Court in its judgment decided that the Commercial Finance case was not
applicable. The Court, however, noted that although it was submitted in closing arguments on
behalf of the Appellant that there was no retrenchment within the meaning of the Act, the
Appellant had in fact retrenched the workers, paid severance benefits to them and admitted doing
so in its Evidence and Arguments and in the oral evidence before the Court. The Court noted
that the arguments advanced on behalf of the Appellant in closing arguments were in complete
contradiction to what was said in the opening address of Mr. Cezair and added:

At no time during the hearing of the oral evidence of the Companys witnesses or
through their Evidence and Arguments did the employer plead that these workers were
not RETRENCHED workers within the meaning of the Act.

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The Court then stated that closing addresses must be an exercise aimed at enforcing what had
been presented in evidence and cannot be submitted in isolation or for convenience.

13. On the issue as to whether there were unforeseen circumstances, the Court was of the
view that the Appellant had not established that there were unforeseen circumstances that made it
impracticable to give the minimum period of notice as required under the Act. The Court noted
that one of the explanations advanced by the Appellant as to why it could not give notice in
accordance with section 6 of the Act was because of a commitment given by them to the
purchaser that the workers would commence employment with the new company on June 24th,
2005, the day after the sale. The Court remarked that on the evidence it was obvious that the
Company could not have given any such assurance to the purchaser and therefore that could not
have been a circumstance that prevented the giving of notice.

14. The Court noted that it was admitted in the oral evidence of the Appellant that at no time
were the provisions of sections 4 and 6 of the Act considered nor did it consult with the workers
with respect to the proposed sale, the payment of severance pay or the option to accept
employment with the new company. H.H. Rousseau in delivering the judgment of the Court
stated:

Employers who are conducting discussions associated with the retrenchment of


workers, have an obligation to acquaint themselves with the provisions of the Act. For
the Company to admit to the non-observance of these provisions during discussions
and then to seek exoneration through Section 7 of the Act, is in my view a fundamental
breach of the principles and practices of good industrial relations. We therefore are
unable to determine what were the unforeseen circumstances, when in the first place
the provisions of Sections 4 and 6 were not even considered during the discussions
with Mr. Hadeed.

In these circumstances the Court ordered that the Appellant pay to the retrenched workers, wages
equivalent to 45 days notice plus interest of 10 percent.

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15. The Appellant before this Court made three submissions. In broad terms they are:

1. the Industrial Court, by making the order it did, erred in law or exceeded its
jurisdiction as there was no redundancy within the meaning of the Act;

2. the Court erred in law in concluding that the Appellant had failed to discharge the
evidential burden that its failure to give 45 days notice was due to unforeseen
circumstances having made it not practicable to do so;

3. in any event the order for the payment of moneys to the workers in lieu of notice is
not a power available to the Court under the Act.

16. With respect to the first submission, Counsel for the Appellant argued that the obligation
to give notice under the Act only arises where there is a retrenchment within the meaning of the
Act. There, therefore, had to be a termination of the workers employment by reason of
redundancy, or in other words a termination because there is a surplus of labour in an
undertaking for whatever cause. Counsel submitted that the word undertaking in the definition
of redundancy may mean a part only of the employers business and not the entirety of it, where
that part is distinct, independent and separable from the whole. Since in this case the Appellant
sold a part of its business, namely, the retail fabric business, which was distinct, independent and
separable from the rest of the Appellants business and all the workers employed in that
undertaking were offered employment by the purchaser of the undertaking there was no surplus
labour in that undertaking.

17. This point, it will be appreciated, is different from that argued before the Industrial Court,
which was that there was no redundancy because the entirety of the Appellants business ceased
to continue on the signing of the agreement for sale between the Appellant and the purchaser.
That argument was rejected by the Industrial Court and has not been pursued before this Court.
However, the point argued before this Court, like the argument raised before the Industrial Court,
was also contradictory of the accepted position before the Industrial Court that the workers were
retrenched and paid severance benefits under the Act. Counsel for the Respondent submitted
that the Appellant cannot be permitted to use the appellate process to dispute or contradict a fact

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that it agreed to before the Court at first instance and/or to argue before this Court a point it did
not dispute before the Court at first instance.

18. A party is not necessarily precluded from arguing on appeal matters he may have
conceded or accepted in the Court below. The Appeal Court has a discretion whether to permit
the point to be argued. It is however a discretion that should be exercised only in exceptional
circumstances. This was so stated in Jones v Governing Body of Burdett Coutts School
[1999] I.C.R 88 where the question arose whether the Employment Appeal Tribunal in England
properly exercised its discretion to allow a new point of law to be raised. Walker, L.J,. in giving
the judgment of the Court, after making reference to several authorities stated (at p. 44):

These authorities show that, although the appeal tribunal has a discretion to allow
a new point of law to be raised or a conceded point to be reopened, the discretion
should be exercised only in exceptional circumstances, especially if the result would
be to open up fresh issues of fact which, because the point was not in issue, were
not sufficiently investigated before the industrial tribunal. In Kumchyks case
[Kumchyks v Derby City Council] [1978] [ICR 1116] the appeal tribunal presided
over by Arnold, J expressed the clear view that lack of skill or experience on the
part of the appellant or his advocate would not be a sufficient reason. In Secretary
of State for Employment v Newcastle Upon Tyne City Council [[1980] [ICR 407]
the appeal tribunal presided over by Talbot, J. said that it was wrong in principle to
allow new points to be raised, or conceded points to be reopened, if further factual
matters would have to be investigated. In Hellyer Brothers Limited. v McLeod
[[1987] [ICR 526] this court, in a judgment of the court delivered by Slade, L.J.
which fully reviewed the authorities, was inclined to the view that the test in the
appeal tribunal should not be more stringent that it is when a comparable point
arises on an ordinary appeal to the Court of Appeal. In particular, it is inclined to
the view of Widgery, L.J. in Winston v Liverpool Corporation [1971] 1WLR
302,307, that is, to follow:

the well-known rule of practice that if a point is not taken in the court of trial, it
cannot be taken in the appeal unless that court is in possession of all material
necessary to enable it to dispose of the matter finally, without injustice to the
other party and without recourse to a further hearing below.

19. Similar statements may be found in other cases for example in Burgess v Stafford Hotel
Limited [1990] 3 ALL ER 222 the Court of Appeal stated:

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The fact that a point has not been raised in the court below does not depend on
evidence. Once it is apparent that it is the case, then it can only be raised in this court
if this court allows it to be so raised, if necessary after an amendment, if necessary
after calling fresh evidence and it is wholly a matter of discretion. As a general
proposition this court would not allow this point to be argued since it would mean a
rehearing.

20. I agree with these statements. They accord with the practice of this Court. This Court
has a discretion whether to allow a new point or a point conceded in the Court below to be
argued on appeal. It is a discretion which it will only exercise in exceptional circumstances and
as a general rule it will not exercise its discretion to permit the point to be argued unless it is in
possession of all the material necessary to enable it to dispose of the matter finally, without
prejudice to the other party, and without recourse to a further hearing below.

21. Counsel for the appellant relied on the case of Royster v Cavey [1947] KB 204 where in
the judgment of Scott, L.J he stated (at p. 209):

It was not open to the parties to this suit by agreement to have the matter dealt with
on the footing, proved to be false, that the defendant was in occupation of the lands in
question.

Counsel therefore argued that it would be wrong to proceed on the basis that there was a
redundancy when there was none even though that position was accepted by the Appellant in its
pleaded case as appears in its Evidence and Arguments and in the oral evidence.

22. In the Royster case it was admitted before the appellate court by the appellant that the
basis on which the matter proceeded against the defendant in the court below was not sustainable
and was indeed false. It was in that context that Scott L.J. stated that the matter could not be
dealt with on a footing proved to be false. The matter was put this way by Bucknill, LJ.

On the pleadings, the defendant, by his silence, impliedly admitted that he was the
employer and the occupier of the factory, and the case was dealt with on that footing
In truth the defendant was neither the employer nor the occupier of the factory
The result is, in my view that this court cannot pronounce judgment against a
defendant when in truth and in fact he is not under any liability at all

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I do not view that case as establishing any different principle than the cases referred to above.
There was no doubt when the matter was before the appellate court, that a point that was not
disputed in the court below was in fact untrue. The case provides an example of a case when the
appellate court may allow a new point argued or a point conceded in the court below to be
reopened where it is in possession of all material necessary to deal with it finally, fairly and
without recourse to a further hearing below.

23. To support Counsels submission that there was no retrenchment, the evidence would
need to establish that the part of the Appellants business that was sold constituted an
undertaking or part of the business that was distinct, independent and separable from the
remainder of the Appellants business and all the workers who were employed within that part
were offered employment by the purchaser. These are both matters of fact.

24. While it seems to be common ground that all severed workers were offered employment,
the evidence does not support the contention that all workers in the retail fabric business were
offered employment. On the evidence there were about 94 workers employed in the retail fabric
business but only 72 were offered employment. There is therefore no evidence that all workers
in the part of the business that was sold were offered employment. The evidence does not
indicate what happened to them.

25. As to the other factual issue, it was not part of the pleaded case of the Appellant as
appears in its Evidence and Arguments that what was sold was an undertaking in the sense
submitted by Counsel. What if anything emerges is that the entirety of the Companys
operations was sold. This is reflected in Mr. Cezairs submission before the Industrial Court that
the entirety of the Appellants business ceased to continue. That however was patently not
supported by the evidence.

26. In the oral evidence, references could be found to a sale by the Appellant of its fabric
business or textile business. In the letters to the workers by Diamondtex reference is made to
the sale of the Appellants retail fabric business. This on the face of it was not consistent with
the pleaded case of the Appellant as expressed in its Evidence and Arguments, which referred to

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the sale of the Appellants operations. Whether the various expressions of what was sold
meant the same thing was not explained perhaps because what was in fact sold was not in issue
before the Industrial Court. It was certainly not in issue whether what was sold was a part of the
Appellants business that was distinct, independent and separable from the whole as submitted
by Counsel for the Appellant and it would be dangerous to extrapolate from statements in the
evidence in relation to matters that were not in issue.

27. It is clear that the factual issues to support Counsels submission were not investigated
before the Industrial Court. This Court cannot be satisfied that it has all the material before it to
determine a point now sought to be raised. If the point now advanced by the Appellant were
allowed to be raised the result would therefore be to open issues of fact that were not
investigated before the Industrial Court. For the point therefore to be properly considered by the
Court there would need to be a rehearing or further hearing. In those circumstances, unless there
are exceptional circumstances that would warrant it, and none have been advanced, this Court
ought not to exercise its discretion to entertain the point now raised by the Appellant.

28. In any event, even if the underlying facts to support Counsels submission were proven,
and it is accepted that undertaking may mean a part only of a business and not the entirety, I do
not think the argument has any merit. Counsels submission that once the workers are offered
employment within the undertaking by the purchaser of the undertaking there is no surplus of
labour and hence no redundancy, ignores the fact of termination of the workers employment by
his employer. Retrenchment is the termination of a workers employment at the initiative of his
employer for the reason of redundancy. Where the services of a worker are terminated at the
initiative of his employer, whether he was retrenched depends on the reason he was dismissed. It
cannot depend on whether he was rehired by another employer. I think this is borne out by
section 19(1) of the Act which provides as follows:

Where the proposals for retrenchment contemplate the absorption of retrenched


workers into another undertaking of the same employer or an undertaking of the
employers assignee or successor, then that employer may withhold the payment of
severance benefits, paying instead to the worker on regular pay days from the date of
retrenchment to the date of absorption or other alternative employment, whichever
first happens, a relief payment of fifty per cent of his basic salary.

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It is clear that that section treats the worker as retrenched even in cases where there may be
proposals for his employment in an undertaking by another employer. If he is so employed that
does not mean he has not been retrenched but the employer may be relieved from the payment of
severance.

29. It is impossible to come to the conclusion in this case that there was no redundancy and
this is so whether or not what the Appellant agreed to sell was an undertaking in the sense
submitted by its Counsel. Undertaking must refer to the undertaking of the employer of the
dismissed worker. On the facts of this case, the Appellant dismissed the workers having entered
into an agreement to dispose of its retail fabric business, to use the expression contained in the
letters from the Appellant to the dismissed workers. The workers were no longer required in
relation to that business. If the undertaking is viewed as referring to the whole of the Appellants
business of which the retail fabric business is part, then it cannot be doubted that the workers
were surplus to the undertaking of the employer. If undertaking is viewed as referring to the
retail fabric business then it must equally be that having agreed to sell that business, the workers
were surplus to it. The position would be no different if the position were taken that the workers
were dismissed after the business was sold. That business would no longer be part of the
employers undertaking and the workers who were employed in it would then be surplus to the
employers undertaking. The workers are not to be treated as anything other than surplus to the
employers undertaking simply because someone else may have agreed to employ them in his
undertaking.

30. Counsels second submission seeks to challenge the finding of the Court that the
Appellant failed to discharge the burden placed on it by section 7 of the Act that the
circumstances were unforeseen.

31. Section 7 of the Act is clear and does place the burden on the employer to prove that the
circumstances which prevented him from complying with the requirement to give notice under
section 6 were unforeseen. The Court in its judgment adopted the meaning given to unforeseen
in the Oxford Dictionary Thesaurus and Word Power Guide which is something not
anticipated or predicted. Before this Court the parties accepted that definition of unforeseen as

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correct. What the Appellant therefore challenges is the Industrial Courts finding that the
evidence did not establish something not anticipated or predicted.

32. It is trite that an appeal from the Industrial Court does not lie on a question of fact. The
appeal on this ground is however framed as a point of law. It is the contention of the Appellant
that there was no evidence before the Industrial Court to justify such a finding by it. If there was
no evidence on which the Court could have come to its finding then that will amount to an error
of law. In that context no evidence can refer to a number of differently expressed conclusions
which include, that there was no evidence to justify the conclusion that was reached, the Court
misunderstood or misapplied the facts, the evidence is inconsistent with and contradictory of the
determination, or the true and only reasonable conclusion contradicts the determination (see
Fernandez Ltd. v TIWU (1968) 13 WIR 336 and Civil Appeal 77 of 2002 Petroleum
Company Trinidad and Tobago Limited v OWTU).

33. Counsel for the Appellant submitted that there is no evidence to justify the conclusion of
the Court. He argued that the only reasonable conclusion open to the Industrial Court was that
due to unforeseen circumstances the Company could not give the required notice under the Act.
He submitted that it was simply unforeseen that the negotiations for the sale to the purchaser of
part of the Appellants business would begin on one day and conclude on the next with the
requirement that the purchaser be given immediate possession of the business. The
circumstances which were unforeseen did not allow the Appellant to give notice to its workers as
provided for in sections 4 and 6 of the Act. He noted that the Court referred to certain
contradictions in the evidence of the Appellant, but submitted that such contradictions did not
amount to evidence in which the Industrial Court could find that there was time to give notice
between the start of negotiations of the transaction of the purchase and the execution of the
contract document. In any event, he submitted, the Court failed to make a finding as to the date
on which the negotiations commenced and in the absence of such a finding there was no
evidence on which the Court could properly make the finding that it did.

34. The Appellants evidence before the Court was that at some time before the concluded
agreement, negotiations began for the sale of the business. However, either on June 21st or June

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22nd, 2005 a firm offer was made to purchase the business which included a condition that the
purchaser be given possession immediately. The following day the agreement referred to earlier
in this judgment was signed by the parties. But there was also an understanding between the
purchaser and the Appellant that the workers would be retrenched by the Appellant and would be
rehired by the purchaser and that the Appellant would pay their severance benefits. This
undertaking apparently manifested itself by the Companys retrenchment of its workers, the
payment to them of severance benefits and the offer of employment by the purchaser. Further,
there was evidence there was never any discussion of the provisions of the Act as to the giving of
notice. In fact, Mr. Aboud, who conducted the negotiations on behalf of the Appellant, said he
was not aware of those provisions of the Act.

35. The only aspect of the evidence capable of coming within the accepted definition of
unforeseen as something not anticipated or predicted is that the purchasers offer to purchase
included a term for immediate possession. But although this was an offer by the purchaser the
acceptance of it was a matter of agreement between the parties. While at the outset of
negotiations it might not have been predicted or anticipated that the purchaser would want
immediate possession of the premises, the acceptance of such a condition and the consequent
agreement or understanding to immediately retrench the workers were within the deliberate
judgment and control of the Appellant. Further, the Appellant must have known that by agreeing
to the offer of the Appellant and arriving at the understanding referred to above in relation to the
workers, it was putting itself in a position where it could not give any notice of termination as
required under the Act. As Counsel for the Respondent submitted, by so doing the Appellant
created the circumstances which predictably prevented the giving of the required notice and it
must have been foreseen that the giving of 45 days notice was not possible. Those circumstances,
which were within the deliberate judgment and contemplation of the Appellant, cannot be
considered as unforeseen or not anticipated or predicted.

36. During the course of argument before this Court Counsel for the Appellant at one stage
seemed to rely on the evidence that Mr. Aboud, in the course of the negotiation on behalf of the
Appellant, was not aware of the provisions of the Act regarding notice. He, however, in the end
conceded that that cannot be an unforeseen circumstance and was plainly right to do so.

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37. In the circumstances, in my judgment, the Court cannot be faulted for its conclusion that
the Appellant did not discharge the evidential burden on it to show that there were unforeseen
circumstances that made it impracticable for the Appellant to give notice.

38. With respect to the third and final submission of the Appellant that the Industrial Court in
any event did not have power to make the order it did, Counsel argued that the Act spells out in
section 25(1) the only consequences of the failure to give notice of retrenchment. This section
treats the failure to give notice as an industrial relations offence and if the employer is found
guilty he is subject to a fine of $10,000.00. The only compensation, Counsel argued, to be paid
in consequence of retrenchment of a worker is severance benefits under section 18 of the Act.
Counsel further argued that to construe the Act in any other way would produce internal
inconsistencies and defeat to the policy of the Act.

39. I do not agree with this argument as it overlooks other provisions of the Act.

40. Section 25(2) is one section that gives the Industrial Court the power to make an award in
favour of an aggrieved worker where the employer is in breach of any provisions of the Act. It is
convenient here to set out section 25:

(1) A person who contravenes the provisions of this Act is guilty of an industrial
relations offence within the meaning of the Industrial Relations Act and liable -

(a) in the case of an employer, to a fine of ten thousand dollars; and


(b) in the case of a union, to a fine of five thousand dollars.

(2) Where a contravention referred to in subsection (1) is brought before the


Industrial Court it shall be dealt with in accordance with the procedure laid
down by the Industrial Relations Act, and the Court may make an award in
favour of an aggrieved party.

41. It is clear under section 25(1) contraventions of the provisions of the Act are treated as
industrial relations offences punishable by a fine. But section 25(2) also empowers the Industrial
Court to make an award in favour of an aggrieved party where a contravention referred to in

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section 25(1) is brought before the Industrial Court. The word award in section 25(2) is
certainly wide enough to include a payment to a worker of a sum of money by way of
compensation or damages.

42. Section 25(2) therefore empowers the Industrial Court to order a payment of money to a
worker where an industrial relation offence is brought before the Court. It is therefore not
correct to say that section 25(1) of the Act provides the only consequence for the failure to give
notice and that the Act does not contemplate payment of compensation other than by way of
severance payments as provided in section 18.

43. The Industrial Relations Act sets out the procedure relating to industrial relations
offences (see s.84). That was not followed in this case and it is clear that the Respondent did not
institute proceedings for an industrial relations offence. It was nonetheless a course open to the
Respondent in which it may have obtained an award in favour of the aggrieved worker. That
was however not the only option given to the Respondent under the Act.

44. Section 23 of the Act provides as follows:

(1) A dispute arising out a retrenchment issue including -

(a) a dispute which alleges unfair dismissal;


(b) a difference of opinion as to the reasonableness or otherwise of any action
taken or not taken by an employer or a worker; or
(c) a dispute as to what is reasonably comparable in respect of a terminal
benefit scheme.

may be reported to the Minister as a trade dispute and shall be dealt with as such
under the Industrial Relations Act.

(2) A claim against an employer for unpaid severance benefits under this Act is
deemed to be a trade dispute.

45. Thus under section 23 a dispute that arises out of a retrenchment issue may be reported as
a trade dispute to the Minister. There is no doubt that the dispute as to failure of the employer to
give notice as required under the Act is a dispute arising out of a retrenchment issue and one that

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may be reported to the Minister as a trade dispute to be dealt with under the Industrial Relations
Act. There is also no dispute that this is what occurred in this case. The failure by the Appellant
to give notice was reported to the Minister as a trade dispute and referred by him to the Industrial
Court as an unresolved dispute.

46. On the hearing of a trade dispute, the Industrial Court has wide powers. It is sufficient
for the purpose of this case to refer to two provisions of the Industrial Relations Act that
empower the Industrial Court to make an award in relation to disputes before it. The first of
these is section 10(1)(b) which provides as follows:

10. (1) The Court may, in relation to any matter before it

(b) make an order or award (including a provisional or interim


order or award) relating to any or all of the matters in dispute
or give a direction in pursuance of the hearing or determination;

The other section is 10(3) and this is as follows:

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.

47. It is therefore incorrect to contend that the only consequence of the failure to give notice
is contained in section 25(1) of the Act. The Act provides other consequences. The failure to
give notice may be treated as an industrial relations offence and an award may be made in favour
of the aggrieved worker by the Industrial Court under section 25(2). Further, and of relevance
here, the Act provides that the failure to give notice may be referred to the Minister as a trade
dispute and shall be dealt with as such under the Industrial Relations Act. The Court in the
exercise of its power in dealing with the dispute has the power to make an award. An award is

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wide enough to include the payment of a sum of money by way of compensation or damages.
To construe the Act in this way is not to produce an inconsistency or defeat the policy of the Act
but to give effect to its very clear meaning and intent.

48. There is no dispute that the Minister in the exercise of the power given to him under the
Industrial Relations Act referred the dispute to the Industrial Court. The award in this case was
made on the determination of the trade dispute in circumstances where the Industrial Court found
that the failure to give the dismissed workers notice was in breach of the provisions of the Act,
harsh and oppressive and contrary to the principles and practices of good industrial relations. The
award was for the payment of a sum of money; being the wages equivalent to the notice the
dismissed workers were denied. The award was, therefore, no more than compensation to the
dismissed workers for the notice they were not given. In my judgment the Industrial Court
clearly had the power to make such an order.

49. It is however relevant to note two things. First, the Industrial Court did not say that the
Act permitted the employer to pay salary or wages to the workers instead of providing them with
notice. On the contrary H.H. Rousseau in the judgment of the Industrial Court made the
following comment on the requirement of notice:

It is our considered view that adequate notice to retrenched workers is a principle


and practice of good industrial relations. It is intended to give workers the opportunity
to prepare and organize their livelihood. For an employer to not consider this and to
terminate workers as they did on the afternoon of the June 23rd, 2005 effectively
immediately was indeed harsh and oppressive in the circumstances of this dispute.

Neither was it submitted by the Respondent that the Act permitted the employer to pay salary or
wages to the workers he intends to retrench in lieu of giving them notice. That therefore is not a
question before this Court. Second, although the Industrial Court did say that even if the
Appellant were successful in convincing it that the circumstances were unforeseen that would
not have released it of the obligation to pay in lieu of notice, whether the Industrial Court was
right in so saying is not an issue in this appeal. The fact of the matter is that the Court held that
there were no unforeseen circumstances that made it impracticable for the employer to give
notice under the Act and that is a finding with which I agree. It was also not submitted by either

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party that even if there were unforeseen circumstances the Appellant was still under an
obligation to pay salary in lieu of notice. That therefore is not a question that arises on this
appeal.

50. In view of the above this appeal is dismissed. There being no exceptional reasons within
section 10(2) of the Industrial Relations Act to order otherwise, I make no orders as to costs.

Dated the 31st day of October, 2011

Allan Mendona
Justice of Appeal

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