Bermuda Forwarders Ltd v Bermuda Industrial Union 1992 Civil Jur. No. 292

• Jurisdiction: Bermuda
• Judgment Date: 22 October 1992
• Docket Number: Civil Jurisdiction 1992 No. 292
• Date: 22 October 1992
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Ground, J

Civil Jurisdiction 1992 No. 292

Civil Jurisdiction 1992 No. 313

BETWEEN:

Bermuda Forwarders Limited

Plaintiff

and

The Bermuda Industrial Union & Ors

Defendants

and

Mr. A. Dunch for Bermuda Forwarders Ltd.;

The Attorney General and Mr. P. Holder for the Minister for Labour and Home Affairs;

Mr J. Hall and Mr. M. Scott for the Bermuda Industrial Union and the individual defendants in cause No. 292 of 1992; and

Mr. M. Diel for the Trade Disputes Tribunal.

Metzger v DHSSWLR [1978] 1 WLR 1046

O'Reilly v MackmanELR [1983] 2 AC 237

Doran and Doran v Lennon and O'KellyIR [1945] IR 315

R v National Arbitration Tribunal ex parte Crowther & Co LtdUNK [1947] 2 All ER 693

Bird v O'NealELR [1960] AC 907

Yew Bon Tew v Kendaran Bas MaraUNK [1982] 3 All ER 833

West v GwynneELR [1911] 2 Ch 1

Chebaro v ChebaroELR [1987] Fam 127

Trade Disputes Act 1992

Trade union and trade disputes — Meaning of ‘labour dispute’— Whether dispute continuing — Effect on contract of employment by strike action — Exercise of discretion to grant declaration — Retroactive application of statutes

JUDGMENT

These proceedings relate to the dismissal by Bermuda Forwarders Limited, of certain of their employees in the Autumn of 1991, and to events subsequent to that, and in particular to the purported referral of the matter by the Minister for Labour and Home Affairs to the Trade Disputes Tribunal established by the Trade Disputes Act 1992. I should make it quite clear from the outset that the questions before me relate to the validity of the Minister's referral to that Tribunal only, and not to the general validity, or to the merits, of the 1992 legislation. The Law itself is not challenged in these proceedings and it is only the narrow question of its applicability to Bermuda Forwarders' particular set of circumstances which is in issue.

There are two separate sets of proceedings before me, namely case number 292 of 1992, which seeks certain declarations, and 313 of 1992, which is an application for orders of Certiorari and Prohibition. I was invited to hear them together, although they have not formally been consolidated, and the hearing proceeded on that basis.

At the outset Bermuda Forwarders Limited discontinued their application for an order of Prohibition against the Trade Disputes Tribunal upon counsel for the Tribunal giving an undertaking that the Tribunal would not sit to hear this reference until the questions before this Court had been fully resolved, and that was to include the resolution of any appeals. I accepted the undertaking and by consent discharged the existing interim order prohibiting them from proceeding, and dismissed the Tribunal from that matter, 313 of 1992, with no order as to costs.

There was something else which happened at the outset. The defendants in action 292 made an admission in terms of the second declaration sought in the Originating Summons. In other words, they unequivocally admitted that—‘by virtue of their conduct on or about the first day of October 1991, and more particularly, their withdrawal of their labour and services from the plaintiff, the second to sixteenth defendants have committed an act or acts in repudiation of their contracts of employment which said act or acts the plaintiff was entitled to treat, and did so treat, as an act or acts which brought the said contracts of employment to an end.’

I will come to the question of whether, in view of that admission, I should make a declaration in the terms sought, in a moment. Before doing so I will summarize the outstanding issues and then set out the factual background.

The issues before me, after these various preliminary matters, were—

1. should I grant a declaration in respect of the matters which were admitted;

2. was there an existing labour dispute within the meaning of the Trade Disputes Act 1992 (the ‘TDA’) at the date of the reference to the Tribunal; and

3. if there was, did the TDA apply to it, so as to permit the reference, or was that precluded by the presumption against the retrospective operation of statutes ?

The brief factual background is as follows. On or about 6th September 1991 Bermuda Forwarders Limited, the plaintiff in 292 and the applicant in 313 (whom I will refer to as ‘the company’), dismissed one of their employees, a Mr. Darrell. In response to that the fifteen individual defendants in 292 (whom I will refer to as ‘the men’) went on strike on 26th September. No notice of this strike was given beforehand. The company purported to treat that as a resignation by the men of their jobs. I should say straight away that the use of that expression bedevilled the subsequent history of this matter and was misconceived. They had not in any meaningful sense of the word ‘resigned’ What they may have done was committed a repudiator-y breach of their contracts of employment which the company could accept as bringing that employment to an end. In respect of that first strike, however, the effect of their action is not before me because subsequently, following the intervention of the Labour Relations Officer, it was agreed that the matter of the dismissal of Mr. Darrell should be referred to a Board of Inquiry and that the company would be bound by its findings. This was apparently on condition that the men return to their work, which they duly did the next day, the 27th September.

However, before the Board of Inquiry was convened the men again withdrew their labour on the first of October. As neither the men nor the Bermuda Industrial Union (the first defendant in 292, whom I will refer to simply as ‘the Union’ from now on) have filed any evidence in either proceedings, it is not clear why they did this. It may have been in response to a news report in the Royal Gazette which attributed to the managing director of the company certain statements to the effect that the matter was then at an end. However, I do not have to consider for the purposes of any decision that I am called upon to make whether the managing director indeed said what was attributed to him, or whether that was indeed the cause of what happened next. Suffice it to say that on 1st October the men again went on strike, without giving any notice. They did not subsequently return to work and on 14th October the company again purported to treat this as a resignation which they were accepting.

Neither the men nor the Union accepted the termination of their employment. The matter was subsequently referred to a Board of Inquiry convened under s. 4 of the Labour Relations Act 1975 (‘the LRA’.) Such a Board had power to make non-binding recommendations to the Minister responsible for labour matters, and the company, before participating, made it plain that it would not regard itself as bound by any findings of the Board. The Board upheld the dismissal of Darrell, but recommended that the men be reinstated. The company declined to follow this recommendation and the men were not reinstated. As a result certain industrial action was taken by the Union, and was continuing at the date of the passage of the TDA on 3rd July 1992.

The story so far is derived from the evidence in 292, which as I have mentioned, consisted only of the affidavit evidence of the company, through its managing director, Mr. Kempe. His affidavit also contained evidence of various matters passing between the Minister and the company's counsel (who appeared on the matter before me). I have disregarded those matters for the purpose of deciding the issue in 292, as I do not consider that they are relevant, but they might be summed up as allegations that the Minister gave certain assurances about whether or not the new legislation would be applied to the company if it commenced court proceedings. Suffice it to say that the Originating Summons in action 292 was filed on 3rd July, the day the TDA was passed, at 4:31 p.m.

I will return to the subsequent history in more detail later, when I consider the evidence filed in 313, which consisted of an expanded version of Mr. Kempe's affidavit, together with affidavits from the Minister and the Labour Relations Officer, but again nothing from the Union. For the time being it is sufficient to round the story out by saying that the TDA was duly passed, and received the royal assent on the 7th July. Thereafter, having complied with the statutory preconditions, the Minister purported to refer the question of the dismissals to the Tribunal established by the new legislation.

Declaration As To Dismissals

I will deal now with the question of whether or not I should make a declaration in respect of the dismissal of the men on 14th October. I am urged on behalf of the Union and the men that, notwithstanding their admission as to their repudiation of the contracts of employment, I should exercise my discretion against making a declaration. In support of this argument I have been directed to the note to Order 15, rule 16 in the Annual Practice, 1991 edition. There was a minor dispute as to whether I should look at that edition or the 1979 edition, but as the rule is the same in each, and also the same as the Bermuda rule, the later edition is preferable.

It was not particularly urged upon me by Mr. Hall that I should decline to make the declaration on the basis that it is not the practice to make declarations on admissions alone: see Metzger -v- DHSSWLR[1978] 1 WLR 1046, which is cited in the note. Indeed he went so far as to say that he did not rely upon it. However, I think that I should deal with it briefly. The practice cited seems to be primarily a Chancery practice. The actual case is clearly distinguishable, involving as it did certain matters of public law. In any event, in the case before me I have had the benefit of evidence and argument as to the general principles, based on which I am able to form my own view as to the matter and say that the admission...