Anthon v Guyana Mining Enterprises Ltd
| Jurisdiction | Guyana |
| Judge | Bishop, J.A. |
| Judgment Date | 22 June 1989 |
| Neutral Citation | GY 1989 CA 7 |
| Docket Number | Civil Appeal No. 24 of 1987 |
| Court | Court of Appeal (Guyana) |
| Date | 22 June 1989 |
Court of Appeal
Kennard, J.A.; Bishop, J.A.; Churaman, J.A
Civil Appeal No. 24 of 1987
A. Chase, S.C. for appellant
R. E. O. Moriah for respondent
Constitutional law - Fundamental rights and freedoms — Right to work — Constitution of Guyana, Art. 22 — Meaning of provision and context in which it operates.
Industrial law — Termination of employment — Whether wrongful dismissal — Appellant 60 years, dismissed by his employers after he had rendered 30 years of continuous service and four years and ten months before he was due to retire — Five years earlier appellant had been made Senior Superintendent (Services)— Appellant was paid one month's salary in lieu of notice — No breach of contract — Appellant entitled to deferred pension.
The appellant was 60 years and two months old when, on the 10th May, 1985, he received a letter from his employers, the respondents, terminating his appointment forthwith. For him, it was a grievous blow, particularly since he had rendered 30 years, 8 months and two weeks continuous service, and there were just 4 years 10 months ahead for him to attain 65 years, the age of retirement.
Mr. Anthon had every reason to feel fortified in spirit and secure as an employee of the company; on the 1st March, 1975, he had been appointment General Foreman, and on the 15th September, 1990, Senior Superintendent (Services). On the occasion of the first appointment, he was commended for his “dedicated service and good working relationship” with his employers, and, on the second, the Chairman and Chief Executive Officer encouraged Mr. Anthon's expectations, by addressing these lines to him:
“We would like to take this opportunity to express our pleasure over your appointment which is based on the merits of your good performance. We hope you will continue to make further progress and advancement towards areas of greater responsibility in the future.”
The unceremonious termination of the appellant's services therefore caused senior counsel for him to contend, inter alia, that it amounted to summary dismissal, and that his opinion was reinforced by the argument of the respondents, and the view held by the trial judge, that the three months basic salary paid the appellant, in lieu of notice, was misconceived and should be varied.
The letter the appellant received was as follows:
“GUYANA MINING ENTERPRISE LIMITED BERBICE OPERATIONS
Post Office Box 63, New Amsterdam, Berbice, Guyana, South America
Telephone 03-2233 - 2235
10th May, 1985
Cde. James Anthon,
14 Alexander Street,
New Amsterdam,
Berbice.
Dear Cde. Anthon,
As a result of your having declined the proposal that you opt for early retirement, the Company has decided to terminate your services with immediate effect.
Although your letter of appointment, dated 14th October, 1980, provides for one month's notice or one month's basic salary in lieu thereof, it is decided that you should be paid the amount of three months basic salary in lieu of such notice.
The Company desires to thank you for the many years of service rendered with the industry and wishes you every success in your future endeavours.”
The letter was signed by the General Manager. The invitation to the appellant to opt for early retirement had been received by him only twelve hours before the hour appointed for him to reply. The appellant then promptly sought further and better particulars of his options, whereupon, in reply, he received the letter terminating his services.
At first instance the plaintiff (appellant) claimed:
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(a) Damages in excess of $1500.00 for wrongful dismissal.
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(b) Damages in excess of $1500.00 for breach of contract.
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(c) A declaration that the termination and/or purported termination of the plaintiff's employment, in May, 1985, did not preclude the plaintiff from qualifying for his full pension earned under schemes with the defendants and their predecessors and in the alternative it was a wrongful repudiation of his contract of service.
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(d) An injunction restraining the defendants from terminating the plaintiff's employment except for terminating the plaintiff's employment except for good cause before he reaches the normal retirement age of 65.
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(e) An order directing defendants to pay the plaintiff such sum of money as is found due, owing, and payable by them to him for overtime work, leave pay as well as other benefits under the terms of the plaintiff's employment with the defendants.
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(f) An order for payment of a lump sum and pension due.
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(g) Damages and pecuniary compensation and/or redress in excess of $1500.00 for infringement and/or abridgement of the plaintiff's constitutional right to work.
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(h) Such further and other relief as to the court seems just.
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(i) Interest at the rate of 10% per annum on all sums recovered.
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(j) Costs.
In their Statement of Defence, in so far as it is pertinent to this appeal, the defendants pleaded as follows:
- The defendants categorically deny that the plaintiff was summarily dismissed and aver that it was an express term of the Letter of Appointment, dated 14th October, 1980, as Senior Superintendent, that the latter's services could be terminated by the defendants giving him one month's notice or the payment of one month's basic salary in lieu of notice. 5. That in pursuance of the aforesaid term, the defendants terminated the plaintiff's employment on the 10thl May, 1983 by giving him in excess of one month's salary in lieu of notice… 7… the defendants had a legal right under the aforesaid Letter of Appointment to pay the plaintiff one month of his basic salary in lieu of vacation passage assistance. 8. The defendant exercised the aforesaid right and paid the plaintiff the full amount of his accumulated leave entitlement i.e. six months six days less 22 days. It follows that the plaintiff is only entitled to 22 days pay hereunder to the tune [sic] of $2,299.35 (two thousand two hundred and ninety nine dollars and thirty five cents). The defendants, however, are entitled to a set-off of the same from the two hundred and eighty dollars) paid to the plaintiff in excess of the required one month's basic pay in lieu of notice under the aforesaid contract of employment… 10. With regard to the pension claimed, the defendants stage that the plaintiff is only, entitled to $10,609.06 (ten thousand six hundred and nine dollars and six cents) and that the said sum was tendered to him on the 21st January, 1986. 11. As to the allowance paid to the plaintiff in the sum of $1,171.50 (one thousand one hundred and seventy one dollars and fifty cents) less 22 days i.e. $363.00 (three hundred and sixty three dollars) the defendants also say that they are entitled to set-off the sum of $363.00 from the additional two month overpaid to the said plaintiff… 14. The defendants will contend that the plaintiff's employment was lawfully terminated and that all the benefits accruing to him, under his aforesaid terms of employment and in some cases in excess of what he was legally entitled to were paid to him. The defendants will further contend that the plaintiff's claim is speculative and should be dismissed with costs.
At the trial, the plaintiff (appellant) was successful, but not in every respect. He was awarded $28,504.00 together with costs fixed at $4,500.00 and won the declaration that he was entitled to a deferred pension as provided for him in Rule 13 (ii) of the Bauxite Industry Pension Plan: See the Order appearing in the Appendix A.
The first important point considered by the trial judge was the respondent's right to terminate the appellant's services by a payment in lieu of notice. To determine that His Honour studied the Letter of Appointment (1975) and the one of 1980, in order to ascertain to what extent, if at all, the terms and conditions of the latter superseded those of the former, and, above all, what was the effect of the special bauxite nationalisation legislation on those terms and transformation of privately-owned Bauxite Nationalisation Act, 1971; and later the Bauxite Nationalisation (Modification) Act, 1975.
In section 10 of the 1971 Act, the general principle governing the manner in which workers in the industry, at the time of nationalisation, were not to be affected by the change of ownership, if they remained on, was stated:
“10
(1) Subject to subsection (2), any person employed by the company exclusively in connection with the operation of the nationalised undertaking immediately before the vesting day shall continue to be employed in relation to that undertaking after the vesting day on such terms and conditions as may be agreed on between him and the Guyana Development Corporation being terms and conditions which taken as whole are no less favourable than those applicable to him immediately before the vesting day, and for the purposes of this Act and until otherwise provided by law, any person so employed shall, notwithstanding section 10 of the Public Corporations ordinance, 1962, be deemed to be employed by the Guyana Development Corporation in respect of the undertaking.
(2) The Guyana Development Corporation shall be the successor of the company in respect of the leave and Superannuation rights or benefits (whether earned, accrued, inchoate or contingent) of any person, deemed to be so employed by the Corporation.”
The Act was passed try the National Assembly on the 1st March, 1971.
Some four years later the Bauxite Nationalisation (Modification) Act, 1975 specified:
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3.After the commencement of this Act, the Principle Act shall, in relation to the bauxite undertaking nationalised under the Principal Act with effect from 1st January, 1975, be construed and have effect with the following modification, that is to say, as if the following section had been substituted...
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