Kowla et Al v Versailles & Schoon Ord. Ltd
| Jurisdiction | Guyana |
| Judge | Bishop, J.A. |
| Judgment Date | 19 February 1992 |
| Neutral Citation | GY 1992 CA 3 |
| Docket Number | Civil Appeal No. 24 of 1989 |
| Court | Court of Appeal (Guyana) |
| Date | 19 February 1992 |
Court of Appeal
Kennard, J.A.; Bishop, J.A.; Churaman, J.A.
Civil Appeal No. 24 of 1989
Ashton Chase, S.C. for the appellants.
R.E.O. Moriah for the respondents
Industrial Law - Trade Union — Whether trade union bargaining agent for certain estate workers.
The Guyana Sugar Corporation Limited, and Versailles & Schoon Ord. Limited are two separate and distinct companies, but they both plant and harvest sugar cane with a view to producing sugar. The Guyana Sugar Corporation, hereinafter referred to as GUYSUCO, is the larger of the two companies and as a result of discussions between them, it was decided that the employment of the 255 plaintiffs by the defendant-company, Versailles and Schoon Ord. Limited would close after the 31st October, 1985 and that Guysuco would take over 1900 acres of land at Versailles, that is to say, those lands would fall under the Administrator of Guysuco's Wales Estates; so would the field workers, the plaintiffs. That decision was reached by two companies without reference to the union involved, the Guyana Agricultural and General Workers Union (GAWU). Beyond the present plaintiffs, there were other categories affected by the decision. Their bargaining agents were the National Association of Agricultural, Commercial and Industrial Workers Union (NAACIE), and the Guyana Field Foreman and Superintendents Union.
The union with which we are concerned, here, is GAWU since, according to the Collective Labour Agreement with Guysuco, dated 24 th January, 1980 and tendered in evidence, it was, since the 27 th February, 1976, the bargaining agent of the category of workers, in which the plaintiffs are identified. That is so because the agreement was intended to cover the interests of similar workers of the defendant-company. Clause 22 reads:
“Application of agreement to Houston and Versailles Estates
The provisions of this agreement shall also apply to workers of Houston and Versailles estate.”
The defendant-company was not a signatory to the agreement, but the evidence tends to establish that, when Guysuco and GAWU discussed the take-over, the decision of the defendant-company, to have the services of the plaintiffs carried forward unbroken into Guysuco, was conveyed to GAWU with the defendant-company's concurrence. In fact, Guysuco's letter dated 31 st October, 1985 to each of the affected workers reiterates that understanding:
“As you are aware, Guysuco has taken over a part of the Versailles cane cultivation with effect from 1st November, 1985. The take-over will not affect your services which would be continuous with the Guyana Sugar Corporation under the Administration of Wales Estate.”
That letter appears to have been appears to have been written after a meeting between GAWU and Guysuco at the defendant-company's estate at Versailles. Therefore apart from Clause 22, it would not be unreasonable to conclude that the defendant-company regarded GAWU, as bargaining agents for certain categories of workers on their estates. In this case, those were the plaintiffs, then employed at Versailles. Therefore in all the circumstances, the company would be estopped from denying the arrangement as to GAWU's representation to those workers; Woodhouse A.C. Israel Cocoa Ltd. S.A. v. Nigerian Produce Marketing Co. Ltd. [1972] A.C. 741; Secretary of State for Employment v. Globe Estatic Thread Ltd. [1979] 2 All E.R. 1077.
If, therefore, GAWU's role began at the date indicated in the agreement, and was abiding when the take-over decision was communicated, the next matter for discussion turns on the prayer of the plaintiffs for relief. Paragraph 7 of their Statement of Claim reads:
“Wherefore the plaintiffs claims:
(a) A declaration that at all times an agreement made in the County of Demerara subsisted between them and the defendants under which they were entitled to severance and/or redundancy pay.
(b) Damages in excess of $1,500.00 for breach of agreement touching severance pay and/or redundance pay.
(c) Damages for wrongful termination of employment in October 1985 in the County of Demerara.
(d) An order directing the defendants to pay to the plaintiffs such severance pay as fell due to them in 1985.
(e) Interest at the rate of 11% per annum on all sums collected.
(f) An order restraining the defendants from disposing of their assets until the hearing and determination of this cause.
(g) Such further and other relief as to the court seems just.
(h) Costs.
In the original Statement of Defence filed by the defendant-company, all the material pleadings in the Statement of Claim were admitted, save and except that there was a denial that the employment of the plaintiffs was terminated without notice. But in an amended Statement of Defence those admissions were withdrawn and, as the learned trial judge said, quite correctly, the plaintiffs were required to prove “more issues than when the original Statement of Defence was filed”. But, before us, counsel on both sides, confirmed that, in the light of interrogatories that were administered, entitlement to severance pay was not in issue. Nevertheless it is to be noted that the trial judge did make the specific finding that “a condition of service with the defendant-company [was] for severance pay based on the Collective Agreement dated 24th January, 1980.” Later His Honour expressed this view:
“Counsel for the defendants cannot now be heard to say that the conditions for severance pay embodied in the Collective Agreement of January, 1980 do not form a term in the contract with the workers when the defendant-company has accepted such a term and acted on it since February, 1976.”
There has been no appeal against that finding.
That conclusion is supportable and I adopt it. It is trite that, in Guyana redundancy payment does not arise naturally from the operation of the common law, when the employee's contract of service is terminated for the reason that he is no longer needed for any available job, or no requirement remains for work of the particular kind that he formerly did: North Riding Garages Ltd. v. Butterwick [1967] 1 All E.R. 644. In fact, entitlement to the payment may be claimed, if it was the intention of the employer and the employee that the employee should have that benefit and it is expressed in a special term, written or unwritten, in his contract of employment, or there is a collective agreement, certain terms of which have become incorporated in the employee's individual contract of employment concerning redundancy payment to him: Shipping Association of Georgetown and Bookers Shipping (Demerara) Ltd. v. Hayden (1975) 22 W.I.R. 135.
In seeking to adjudicate in this sensitive area of industrial relations in Guyana, the learned trial judge considered the gravamen of the plaintiff's contention to be that the defendant-company wrongly terminated their services without sufficient notice and without severance pay. His Honour reviewed the evidence and made this pronouncement:
“The plaintiffs were free not to accept the similar jobs offered them by GUYSUCO under terms of employment no less favourable. As I said above they were not dismissed. The defendants have ceased their operations on those nineteen hundred acres which they are entitled to do. They had offered them comparable jobs through their agents. They were not entitled to any damages in my view. It is hereby declared that only those plaintiffs who never took up appointments with GUYSUCO are entitled to severance pay as per agreement with the defendant-company.”
In order to appreciate this aspect of the plaintiffs' claim, Clause 10(2) of the agreement must be studied. It reads:
“A worker who is retrenched shall be given notice of estate management's intention to terminate his employment at least four weeks ahead of the operative date.”
That period of notice is for the employee's benefit and that fact should be borne constantly in mind. Therefore, in reference to it, senior counsel for the plaintiffs made the following submissions to this court:
- There was no notice given by the company or, if given, it was insufficient. 2. No notice was issued by the substantive employer, Messrs. Versailles and Schoon Ord. Ltd. 3. The onus was on the said employer to prove notice to the plaintiffs. 4. The company gave no evidence with respect to notice and its adequacy.
Those submissions all succeed, since the evidence given by Mr. D.P. Sankar, Industrial Relations Director of Guysuco, called on behalf of the company, disclosed that the first of the meetings held with the union was on the 23rd October, 1985 which would have been one week and not four weeks prior to the take-over. Clearly, then, the provisions of Clause 10(2) had not been complied with. Unfortunately, His Honour fell into error when he accepted the words of a plaintiff, as an answer damaging to the case of the plaintiffs on the issue:
“Before I received the letter I heard of the take-over plan. Everybody was talking about it. The workers were talking a long time of the take-over.”
My reaction to that passage is a simple one: that, even accepting that there was talk, it could not be a substitute for the notice contemplated by the agreement. News via the grapevine could not satisfy that requirement since “notice and knowledge are not necessarily the same;” per Lord Blackburn in Mildred v. Maspons (1883) 8 App. Cas. 874 at p. 885. Once that point is made, then it follows that the plaintiff's case as to the failure of the defendant-company to give notice, in accordance with clause 10(2) of the agreement succeeds. Indeed, what purports to be the redundancy notice was issued by the head office of Guysuco and not by the defendant-company, as required by the clause.
The next crucial point is whether there was an assignment of...
To continue reading
Request your trial