Aviation Communication and Allied Workers' Union v Bwia West Indies Airways Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Donaldson-Honeywell, C. |
| Judgment Date | 25 January 2008 |
| Court | Industrial Relations Court (Trinidad and Tobago) |
| Docket Number | Application No.11 of 2006 |
| Date | 25 January 2008 |
Industrial Court
Bernard, P.; Donaldson-Honeywell, C.; Ashby, M.; Rajkumar-Gualbance, M.; Harrigin, M.
Application No.11 of 2006
Mr. Seenath Jairam, Senior Counsel, Mr. Martin George and Ms. Margaret Sookraj-Goswami, Attorneys-at-Law For Party No. 1.
Mr. Russell Martineau, Senior Counsel, Mr. Addison Khan and Ms. Vanessa Mohammed Attorneys-at-Law For Party No. 2.
Civil practice and procedure - Mareva injunction — Application to discharge injunction granted — No arguable case either for the Court's jurisdiction or that the substantive claim can be determined in the Union's favour.
On Friday December 29, 2006 and Saturday December 30, 2006 the Aviation Communication and Allied Workers Union [“the Union”, “the applicant”] obtained from the Court by way of ex parte application, a Mareva Injunction. In effect this order was for the “freezing” of assets owned by BWIA West Indies Airways Limited [“the respondent”] up to the value of US$588,397.00 or TT$3,706,901.10.
The said quantum of the freezing order was broken down to include:–
- US$28,000 or TT$176,000 – a Voluntary Separation from Employment Package that would be acceptable to Mrs. Irenia Patterson [“the worker”]. 2. US$285,760 or TT$1,800,288 - outstanding remuneration claimed by the Union for the worker based on her allegation that having acted in a Senior Position she ought to have been confirmed since May 1st, 1999. 3. US$257,184 or TT$1,620,259 – representing interest on the said sum of alleged outstanding remunerations at 12% for 7.5 years. 4. US$45,453 or TT$286,354 – representing costs fit for Senior, Junior and Instructing Counsel.
The Application was addressed as a matter of urgency at a time when the Court was on a scheduled vacation, the eve of the New Year. The urgent risk to be addressed was the fact that the respondent Company “was going to be divested on 31st December 2006 and was going to be replaced by a new legal entity called Caribbean Airlines.”
The Union's Attorney-at-Law, Mr. Randall Hector deposed that the worker was “in fear that notwithstanding any subsequent referral to the Industrial Court of Trinidad and Tobago by the Union on her behalf (sic) is more likely to be futile since by that time, the Company will not be in existence and/or would have ceased to operate and/or would not have any assets in Trinidad and Tobago and/or any country at all.”
In keeping with general practice, the application was dealt with expeditiously. Without advance filings there was no real opportunity for the relevant papers to be considered before the hearing. One such document included ten (10) lengthy attachments. In this context, it was made clear to the parties that in due course the Court would hear both parties in order to decide whether to continue the injunction. Before this could be done the respondent attempted to have the Court's decision to grant the ex parte injunction overturned by the Court of Appeal. The appeal process commenced on January 24, 2007 and proceedings in this Court were adjourned pending the outcome.
Again, in keeping with settled practice, the Court of Appeal by order dated October 25, 2007 remitted the matter to the Industrial Court for continued inter partes hearing as to whether the injunction would be continued.
The Court of Appeal's position, though not explained, accords with the principle that if an affected party wishes to set aside Mareva relief obtained ex parte by an Application, “his proper course is to apply to the judge. He should not appeal to the Court of Appeal without having first been before the Court at first instance for re-consideration of the ex parte order.” (Mareva Injunctions and Anton Piller Relief, Steven Gee QC, 4th Edn, Sweet and Maxwell at pg 372)
The respondent had in fact initiated steps to have the injunction discontinued following an inter partes hearing by the Court, before embarking on the appeal route to addressing this concern. Additionally, the Court in dealing with the ex parte application made clear that it was being granted only on an interim basis. The understanding was that the Court would consider inter partes whether the injunction should remain in place pending full hearing of the substantive issue.
It is in this context that the Court now determines two applications filed by the respondent on January 12, 2007:–
- An application to strike out scandalous, irrelevant or otherwise oppressive statements in affidavits filed herein. 2. An application to discharge the injunction.
In considering these contested applications, which in effect may call for reconsideration of the Court's initial position, the role of the Court must be understood. It is well stated in Freezing and Search Orders, 4th Edn by Mark Hoyle at pg. 71 as follows:
“The contested hearing is sometimes before the same judge who granted the order without notice, but in practice, especially for urgent cases in the High Court, it is unlikely to be the same judge. The with notice hearing is not an appeal, but an opportunity for both sides to he heard before a decision is taken on the original order. As Sir John Donaldson Mr. said in WEA Records Ltd v. Visions Channel 4 Ltd and others:
‘He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and arguments adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. The same sentiments apply of course to other judges in the same matter’.”
Both parties in this matter filed written submissions in accordance with the Court's directions. The grounds for the respondent's application and responses thereto are to be found in the written submissions which were thereafter reinforced by oral submissions. In summary, the grounds for the application before us include:
A. The contention that twenty-seven paragraphs of the Affidavits filed by the applicant in support of the application for injunctive relief are irrelevant since they do not relate to the subject matter of the dispute as reported. Specifically, it is contended that the dispute reported concerned unacceptability of VSEP, whereas the said paragraphs related to, inter alia, failure to promote the worker, shortfalls of her remuneration and entitlement to retroactive pay.
B. The contention that based on the timelines prescribed by the Industrial Relations Act Chap 88:01 (“IRA”) for processing Trade Disputes there was no dispute properly before the Industrial Court on the dates when injunctive relief was granted.
C. The contention that Affidavits in support of the application for the Injunction ought not to have been considered since they were sworn before the Trade Dispute was lawfully before the Court.
D. The contention that the nature of the issue raised by the Union in the Report to the Minister does not fall within the scope of a dispute that could be pursued by the Union under section 51(1) (c) and 51(5) of the IRA.
E. The contention that in any event the nature of the dispute as stated in the Union's Report and supported by Affidavits does not establish a good arguable case since VSEP is entirely voluntary. The issues of non-promotion set out in the affidavits also failed to disclose a case to be heard by the Court since they were not included in the Report. Additionally, the issue of “refusal to promote” the worker was separately reported as a Trade Dispute on April 3, 2007 and the Union must await the grant of an extension of time under section 51(3) before the Court can hear the non-promotion issue.
F. The contention that the Union's claim is not justifiable in Trinidad and Tobago and the Court has no jurisdiction since the worker, a non-national was always based in Jamaica, her place of employment. It is argued that the employment issues in Jamaica extend beyond the territorial scope of the IRA and the Industrial Court's jurisdiction therein.
G. The contention that since the cross-undertaking in damages which is usually given before a Mareva Injunction is granted was not offered by the Union, the injunction ought not to be continued.
H. The contention that in contravention of settled practice the applicant failed to make full and frank disclosure to the Court in the ex parte process. According to the respondent, this non-disclosure prejudiced the ex parte determination, in that the weaknesses of the substantive claims were concealed from the Court.
As a prelude to stating findings on each of these grounds and the responses thereto, the relevant background information that has been considered will first be outlined. The material before the Court comprised the written submissions, the Court of Appeal Record in CA No. 10 of 2007 and Affidavits filed herein as follows:
- Randall Hector – December 29, 2006 2. Randall Hector – December 30, 2006 3. Irenia Patterson – January 3, 2007 4. Irenia Patterson – December 18, 2007 5. Rachel Laquis – January 9, 2007 6. Rachel Laquis – November 30, 2007 7. Beatrix Carrington – November 7, 2007
The relevant facts before us include the details of the Union's substantive claim and also the history of proceedings before this Court. The Union's claim was first stated in a Report to the Minister dated December 15, 2006. It states:
“December 15, 2006
The Honourable
Mr. Danny Mantano
Ministry of Labour
Minister of Labour & Small and Micro Enterprise Riverside Plaza
Besson Street
Port of Spain
Dear Sir,
The Aviation Communication and Allied Workers Union hereby reports the under-mentioned Trade Dispute in accordance with the Industrial Relations Act Chapter 88:01 as amended.
The dispute: Irenia...
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