Island Construction Ltd and anor v Philips and Phillips

• Jurisdiction: Bermuda
• Judgment Date: 29 July 2019
• Docket Number: Appellate Jurisdiction 2018 No 54
• Date: 29 July 2019
• Court: Supreme Court (Bermuda)

[2019] Bda LR 56

In The Supreme Court of Bermuda

Appellate Jurisdiction 2018 No 54

Appellate Jurisdiction 2019 No 1

Between:

Island Construction Ltd

Zane DeSilva

Appellants

and

Rebecca Philips

Barbara Phillips

Respondents

Mr A Warner for the Appellants

Mr P Sanderson for the Respondents

The following cases were referred to in the judgment:

Kelechi Nwaigwe v Secretary of State for the Home Department [2014] UKUT 418 (IAC)

Tucker v Hamilton Properties Ltd [2017] Bda LR 136

A Law Firm and Estate of the Deceased v Commissioner of Police [2018] Bda LR 27

Appeal against decision of employment tribunal — Summary dismissal — Meaning of an “Order” or “Determination” — Court's jurisdiction over procedural challenges or interim decisions of the tribunal — Tribunal's refusal to adjourn hearing pending police investigation — Employer's absence from tribunal proceedings — Legal professional privilege

EX TEMPORE JUDGMENT of Subair Williams J

Introductory

1. This is appeal is governed by the Employment Act (Appeal) Rules 2014 (“the 2014 Rules”). The Appellants filed a Notice of Originating Motion against the decision of the Employment Tribunal (“the Tribunal”) refusing to adjourn its final hearing (“the interlocutory appeal”). Further, a Notice of Appeal pleading various grounds of complaint was filed to challenge the Tribunal's final determination (“the substantive appeal”).

2. The interlocutory appeal before this Court is based on the Tribunal's refusal to grant the Appellants' application to adjourn its substantive hearing pending the outcome of a police investigation against the Respondents involving criminal offences of dishonesty. Aggrieved by the Tribunal's decision to proceed with the hearing of the Respondent employees' complaint of unfair dismissal, the Appellant filed a Notice of Originating Motion in the Supreme Court on 3 December 2018, using the procedural steps outlined in RSC Order 55 (as opposed to the 2014 Rules). Section 41 of the Employment Act 2000 (“the 2000 Act”) is the statutory basis for a party appealing a determination or order made by the Tribunal.

3. By summons1 dated 18 January 2018 (“the strike-out summons”) Counsel for the Respondents sought to strike out the Appellant's Notice of Originating Motion on the grounds that it was frivolous, vexatious or an abuse of process. The strike-out summons was supported by the affidavit evidence of the Second Respondent, Ms. Barbara Phillips. Reply affidavit evidence from the Second Appellant, Mr Zane Desilva, was belatedly filed on the eve of the hearing, without leave of the Court. No objection from the opposing party arose on this point.

4. At the conclusion of the two-part hearing, I struck out the Notice of Originating Motion as prayed and further dismissed all the grounds of complaint in the substantive appeal. I informed Counsel that I would provide these written reasons.

The Interlocutory Appeal and Relief Sought in Notice of Originating Motion

5. The grounds of appeal pleaded in the Notice of Originating Motion were stated as follows:

• (a) The Tribunal erred in Law in not granting an application for an adjournment by the Appellants in the Interest of Justice.

• (b) The Tribunal erred in law in failing to consider proper case management of the Hearing of complaint in accordance with s. 38(1) of the Employment Act

• (c) That an adjournment was warranted in that the police investigation was likely to obtain further evidence by way of interviews and seizure of documents which would assist the Tribunal with its deliberations.

• (d) That in ordering the matter to proceed before the Tribunal the Appellants would have been prejudiced in the ability to present their full evidential position with regard to the fairness of a summary dismissal of the Applicants.

6. By way of relief, the Appellants also sought “an Order that the Tribunal cease from proceeding with hearing of alleged wrongful dismissal by the Applicants until the conclusion of the Police Investigation and the matter is referred to the DPP for determination as to whether to proceed with criminal charges for dishonesty offences against the Applicants (the Respondents)”.

The Respondent's Strike-Out Summons and Relief Sought

7. The grounds supporting the Respondent's application to strike out the Notice of Originating Motion were made on the basis that the appeal was frivolous, vexatious or an abuse of process. The pleaded grounds were as follows:

• i. it is not an appeal against a “determination or order” for the purposes of s.41 of the Employment Act; or alternatively

• ii. even if it is an appeal against a “determination or order”, filing an appeal did not have the effect of staying the entire tribunal proceedings. Rather the result of a stay was only that there was no standing decision on an adjournment application. The Appellants, having rejected the Chairman's invitation to make their adjournment application at the tribunal hearing, cannot now sensibly appeal the refusal.

8. Additionally, the Respondents complained that the statutory stay imposed by s. 41(5) of the Employment Act 2000 was ineffective as it was predicated on the Appellants' failure to properly name the Respondents as a party to this action in the Notice of Originating Motion, contrary to rule 3(2)(d) of the Employment Act (Appeal) Rules 2014. (Notably, the Respondents were properly joined to this appeal in place of the Employment Tribunal by the Order of Hargun CJ made on 28 February 2019).

The Parties' Submissions on the Strike-out Summons

9. Counsel for the Respondents submitted in the first instance that the Tribunal did not refuse an adjournment application. Rather, an adjournment application was never made. Mr Sanderson peeled through passages of pre-hearing email correspondence2 between Counsel and a clerk to the Tribunal, Mr Shawne Stephens, before highlighting the following communication from the Tribunal:

Dear Mr Sanderson and Mr Pettingill,

The Tribunal has noted your observances and has ordered that the hearing shall convene, as scheduled on Tuesday, December 4.

While the Tribunal will entertain any last minute (further) arguments to adjourn this matter to some unspecified ulterior date, the parties must come fully prepared to present evidence and make submissions on the alleged unfair dismissal of the two employees.

The Tribunal looks forward to your assistance in resolving this matter.

Kindest regards,

10. Mr Sanderson contended that the Tribunal was entitled to set out its own procedures and in doing so, it required an adjournment application to be made in person. However, as foreshadowed by Mr Mark Pettingill's 3 December 2018 email correspondence to the Tribunal, the Appellants did not appear before the Tribunal on the following day for the 4 December hearing:

Dear Madam,

Further to your email below indicting (sic) the Order of the Tribunal we have today filed an Appeal against said Order in the Supreme Court in accordance with s. 41(1) of the Employment Act 2000.

Consequently as a result of the lodging of said Appeal and in accordance with s. 41(5) the Order of The Tribunal that the matter should continue in any form and that our clients should attend at a Hearing tomorrow, 4 December 2018, is legally “stayed”.

Respectfully, we have advised our clients that they do not have to attend tomorrows (sic) Ordered (sic) covering of the Tribunal an subject to the outcome of said Appeal or criminal proceedings instituted against the Applicants in this matter we will seek direction for a new date...