CI2 Aviation Bermuda Ltd v Dr. Michael Bradshaw (as chairman of the Permanent Arbitration Tribunal)
| Jurisdiction | Bermuda |
| Judge | Mussenden J |
| Judgment Date | 07 April 2022 |
| Court | Supreme Court (Bermuda) |
| Docket Number | CIVIL JURISDICTION 2021: No. 6 |
IN THE MATTER OF ORDER 53 OF THE RULES OF THE SUPREME COURT
AND IN THE MATTER OF AN ARBITRATION UNDER THE LABOUR RELATIONS ACT, 1975 BEFORE THE PERMANENT ARBITRATION TRIBUNAL
and
[2022] SC (Bda) 26 Civ (7 April 2022)
CIVIL JURISDICTION 2021: No. 6
In the Supreme Court of Bermuda
Jai Pachai, Wakefield Quin, for Applicant
Kyle Masters, Carey Olsen, for First and Second Respondents
Delroy Duncan QC and Ryan Hawthorne, Trott & Duncan for Intervener
RULING of Mussenden J
The Applicant caused a Notice of Motion dated 11 February 2021 to be issued for an application for judicial review and orders by way of declaration as follows:
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a. A declaration as to the proper legal interpretation of section 23(4)(a) of the Employment Act 2000 (the “ 2000 Act”) in terms of whether reference to “the Employer” is a reference to the current/existing employer, namely the Applicant or the new employer, namely the Bermuda Airport Authority (“ BAA”) in the context of this case;
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b. A declaration that on its proper interpretation the reference to “the Employer” is a reference to the new employer, the BAA;
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c. Accordingly, an Order setting aside the Determination of 7 December 2020; and
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d. An Order staying execution of the Determination of 7 December 2020.
The Applicant's case was supported by an affidavit of Jairaj Pachai sworn on 12 January 2021 along with various exhibits.
The Intervener's case was supported by an affidavit of Kevin Grant sworn 8 October 2021. He is the General Secretary of the Bermuda Public Services Union (the “ BPSU”).
By an agreement dated 26 February 2016 (the “ Agreement”) the Applicant Ci2 was awarded the contract by the Department of Airport Operations of the Government of Bermuda (the “ Government”) to operate airport services including air navigation and airport maintenance services for the period from 1 April 2016 to 31 March 2019 with a further option of years by the prior written consent of both parties.
Prior to the expiration of the agreement on 31 March 2019, the Applicant was informed that the Government did not intend to extend the Agreement beyond its expiration date and that the BAA would take over the airport operations, including the employment of all of the Applicant's Bermuda based employees on terms no less favourable. Accordingly, the Applicant discontinued all its business operations in Bermuda and terminated their Employment Agreements on 31 March 2019. All of the employees save two, who voluntarily left the island, and who comprised 14 unionized and 15 non-unionized employees (together the “ Employees”) were employed by the BAA on 1 April 2019. Each of the 29 employees was employed by the BAA in exactly the position as each previously held with the Applicant with an across the board 2% increase in pay.
A claim for redundancy payments was made against the Applicant by the Intervener, the BPSU, on behalf of the Employees totaling sums claimed in the amount of $207,742.92 by way of severance pay resulting from their employment with the Applicant.
The Minister of Labour referred the dispute between the BPSU on behalf of the Employees and the Applicant to the Permanent Arbitration Tribunal (the “ PAT”) comprising the First Respondent as chairman and two other members. A hearing took place 24 – 26 November 2020 when witnesses gave evidence.
The PAT issued its determination dated 7 December 2020 (the “ Determination”) and made a finding that:
“(e) The Tribunal accepts that the terms and conditions of service were not less favourable in any substantial manner or unreasonable degree at the commencement of employment with BAA. Any objectionable changes to terms and conditions occurred under the tenure of the BAA.”
As to the issue of whether “employer” under section 23(4) of the 2000 Act refers to the same employer, namely, the Applicant or the new employer the BAA, the PAT held that reference to “employer” is a reference to “the same employer”, that is the Applicant. Thus, severance was payable to the Employees by the Applicant.
The Applicant has brought these proceedings seeking a declaration that the Determination was the result of a misinterpretation of the 2000 Act and therefore wrong.
Section 3 of the 2000 Act is the Interpretation Section which provides that:
“employer” means a person in Bermuda who employs employees.
Section 4(1) of the 2000 Act provides the meaning of “employee”:
“4(1) For the purposes of this Act, “employee” means—
(a) a person who is employed wholly or mainly in Bermuda for remuneration under a contract of employment;
(b) any other person who performs services wholly or mainly in Bermuda for another person for remuneration on such terms and conditions that his relationship with that person more closely resembles that of an employee than an independent contractor;
but does not include a person who falls within subsection (2).”
Section 5(6) of the 2000 Act provide as follows:
“ Meaning of “continuous employment”
5(6) Where a business is sold, transferred or otherwise disposed of, the period of employment with the former employer shall be deemed to constitute a single period of employment with the successor employer, if the employment was not terminated and severance pay was not paid pursuant to this Act.”
Relevant parts of Section 23 of the 2000 Act provide as follows:
“Severance allowance
23(1) Subject to subsection (7), on termination of his employment, an employee who has completed at least one year of continuous employment shall be entitled to be paid severance allowance by his employer
(2) …
(3) For the purposes of subsection (1), termination of employment means termination by reason of—
(a) redundancy;
…
(4) Severance allowance is not payable where an employee—
(a) unreasonably refuses to accept an offer of re-employment by the employer at the same place of work under no less favourable terms than he was employed immediately prior to the termination;
(b) is employed by a partnership and his employment ceases on the dissolution of the partnership and—
(i) he enters into employment with one or more of the partners immediately after the dissolution; under no less favourable terms than he was employed immediately prior to the dissolution, or
(ii) he unreasonably refuses to accept an offer of re-employment by any of the partners under no less favourable terms than he was employed immediately prior to the termination;
(c) … is employed by an employer who dies and—…”
Sub-sections 30(1), (2) and (3) of the 2000 Act provide as follows:
“ Termination for redundancy
(1) An employer may terminate the employment of an employee whose position is redundant.
(2) An employee is redundant for the purposes of this Act, where the termination of his employment is, or is part of, a reduction in the employer's work force which is a direct result of any of the conditions of redundancy.
(3) The following are the conditions of redundancy—
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(a) the modernisation, mechanisation or automation of all or part of the employer's business;
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(b) the discontinuance of all or part of the business;
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(c) the sale or other disposal of the business;
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(d) the reorganisation of the business;
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(e) the reduction in business which has been necessitated by economic conditions, contraction in the volume of work or sales, reduced demand or surplus inventory;
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(f) the impossibility or impracticality of carrying on the business at the usual rate or at all due to—
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(i) shortage of materials;
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(ii) mechanical breakdown;
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(iii) act of God; or
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(iv) other circumstances beyond the control of the employer.”
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In respect of statutory interpretation, in Minister of the Environment v Rodrigues Trucking and Excavating [2004] BDA LR 39 Kawaley J stated at pages 2, 3 and 4:
“However, if regard was to be had to the canons of construction, Mr. Froomkin relied on three interpretive principles. Firstly, the presumption that Parliament does not intend unworkable or impracticable, inconvenient, anomalous or illogical, futile or artificial results, or a disproportionate counter-mischief: Bennion, page 751 et seq. Secondly, he submitted, that the “starting point in statutory interpretation is to consider the ordinary meaning of the word or phrase in question, that is its proper and most known signification. If there is more than one ordinary meaning, the most common and well-established is preferred (other things being equal)”: Bennion, page 917. However, the context may drive the interpreter to one of the others. This may be a quite different meaning, or a subdivision of the common meaning”: ibid, page 920.”
“the applicability of the presumption against absurdity or inconvenience in Bermuda law was supported by reference to Hope Bowker Real Estate v Roderick DeCouto [1986] BDA LR 19, where the Court of Appeal for Bermuda (at page 4–5 of the Court's judgment) gave a statutory provision a restricted meaning to avoid “an untoward result which does nothing towards achieving the object of the legislation.”
“For the principle that the main purpose of the statutory interpretation is to ascertain the meaning of the words used, the Plaintiff's Counsel cited Sir James Astwood JC at pages 2–3 of his judgment in Ministry of Finance v Hawkes [1991] Bda LR 57…. It was submitted that the Chief Justice's articulation of the canons of interpretation remain good law.”
“In essence, there is a presumption that Parliament does not...
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