Richard Thomas v Anthony Marine Services Ltd

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Mr. Justice Robin N. Mohammed
• Judgment Date: 19 February 2021
• Neutral Citation: TT 2021 HC 40
• Docket Number: Claim No. CV2020-00070

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice Robin N. Mohammed

Claim No. CV2020-00070

Claim No. CV2020-00077

Between

Richard Thomas

Claimant

and

Anthony Marine Services Limited

Defendant

Between

Selwyn Joseph

Claimant

and

Anthony Marine Services Limited

Defendant

Appearances:

Mr. Gerald Ramdeen instructed by Ms. Dayadai Harripaul for both Claimants

Mr. Pascall N. Marcelin for the Defendant

RULING ON THE PRELIMINARY ISSUE OF THE COURT'S JURISDICTION IN BOTH CLAIMS

I. Introduction and Procedural History

1 Both Claims as filed before the Court arise out of the same circumstances involving the same Defendant. The Court will therefore give one decision regarding both Claims. Both Claimants filed their Claim Form and Statement of Case against the Defendant on 8 January 2020.

2 Both Richard Thomas and Selwyn Joseph were permanently employed by the Defendant. Richard Thomas was continuously employed by the Defendant during the period 8 November 2012 ( sic) 1 to 8 January 2016 as Chief Engineer. Selwyn Joseph was continuously employed by the Defendant during the period June 2009 to 8 January 2016 as a Deckhand.

3 On 8 January 2016, the Defendant's Managing Director told the Claimants that they would no longer be employed with the Defendant Company. The Claimants' positions had become surplus to the requirements of the Defendant and as a result their positions became redundant. By letter dated 17 May 2016, both Claimants were given notice that their employment with the Defendant was being terminated. The Claimants were served with formal notice of their retrenchment on 17 May 2016.

4 Both Claims relate to the outstanding retrenchment and severance benefits owed to them by the Defendant for services performed at the Defendant Company pursuant to section 18(3) of the Retrenchment and Severance Benefits Act, Chap 88:13. In relation to Richard Thomas, the period of services performed was 13 years and 2 months whereas Selwyn Joseph's period of services performed was 9 years, 6 months and 8 days.

5 According to the Claimants, the Defendant is in breach of the statutory obligation imposed on it by law since they have not received payments of any severance benefits despite a period of more than 3 years and 11 months having elapsed since the date of their retrenchment.

6 On 14 July 2020, the Defendant filed its appearance to both Claims giving notice of its intention to defend both Claims. The Defendant, however, admitted part of Richard Thomas's Claim in the amount of $70,157.50 but filed no application to pay by instalments. However, on 30 July 2020, Richard Thomas filed a Notice that he does not accept the amount admitted by the Defendant and he wished the proceedings to continue in accordance with Part 14.6(2) and (3) of the Civil Proceedings Rules 1998 (CPR).

7 The Defendant filed its Defence on 4 August 2020. The Defendant's Defence to both Claims is that the Claimants' Claim ought to be struck out as an abuse of the process of the Court as the Court does not have jurisdiction since the matter regarding outstanding severance payments to the Claimants is currently before the Industrial Court Reference Trade Dispute No. GSD-TD054/2017(S) Oilfield Workers Trade Union and Anthony Marine Services Limited.

8 As it relates to Richard Thomas, the Defendant averred that it had all intentions to settle all of its outstanding severance payments to Richard Thomas which was confirmed to the Ministry of Finance, Board of Inland Revenue as $93,545.33.00 However, the Defendant has paid part of the severance to Richard Thomas in the amount of $23,385.83 to his bank account on 23 September 2016 leaving a balance of $70,157.50.

9 According to the Defendant, in 2016 as the last year of audited statements for the Defendant Company, the Defendant made a significant loss of $2,964,653.00. The Defendant averred that it has not received any further contracts since 2016 for its vessel on which the Claimants have worked and has been unable to pay the outstanding balance owed to Richard Thomas. The Defendant, however, acknowledged its obligation under the Retrenchment and Severance Benefits Act to Richard Thomas for payment of severance but it does not have the financial means to satisfy the balance of the Claim. As a result, the Defendant and the representative union for the Claimants are in discussions at the Industrial Court on this matter.

10 As it relates to Selwyn Joseph, the Defendant averred that the period for payment under the Retrenchment and Severance Benefits Act is 6 years and 10 months. Nonetheless, the total severance benefits as confirmed to the Ministry of Finance, was $59,269.22. The Defendant denied that it owed outstanding severances benefits to Selwyn Joseph since it has paid all outstanding sums to Selwyn Joseph to his bank account on various days, namely: 10.04.2017, 27.07.2017, 23.09.2017 and 23.09.2017 totalling $59,269.22.

11 The Defendant maintained that it has complied with the Laws of Trinidad and Tobago and all terms of the contract of employment and it has not failed to honour its obligations to Selwyn Joseph under the Retrenchment and Severance Benefits Act since Selwyn Joseph was paid his full entitlement.

12 On 9 September 2020, the Defendant filed a Notice of Application in both Claims applying to the Court for an Order that (1) pursuant to Part 26.6(2) of the CPR, the Defendant be granted relief from sanction for failing to comply with the requirements of Part 9.7(3) of the CPR; and (2) pursuant to Part 26.1(1)(d) of the CPR, the Defendant be granted an extension of time to the 14 September 2020 to file an application under Part 9.7(1) of the CPR disputing the Court's jurisdiction in this matter. This application was scheduled for hearing on the date fixed for the Case Management Conference (CMC), that is, 21 September 2020.

13 Subsequently, on 11 September 2020, the Defendant filed a Notice of Application in both Claims applying to the Court pursuant to Part 9.7 of the CPR for an order that (1) the Honourable Court does not have jurisdiction to try this Claim; (2) even if the Court has jurisdiction, it should not exercise any jurisdiction which it may have; (3) that the Claimants' Statement of Case be struck out; and (4) there be no order for costs. This application was also scheduled to come up for consideration at the CMC.

14 However, the Defendant filed two Notices of Withdrawal in both Claims. One on 16 September 2020 withdrawing its Notice of Application dated and filed on 9 September 2020 and the other on 17 September 2020 withdrawing its Notice of Application dated and filed on 11 September 2020.

15 Thereafter, the Defendant filed an Amended Defence in both Claims on 18 September 2020. In essence, the Defendant maintained that the Claimants' Claims ought to be struck out on the basis that the High Court does not have jurisdiction in the matters since the individual Claims brought by Richard Thomas and Selwyn Joseph for payment of severance benefits owed to them for a period of 4 years, 7 months and 16 days, both pursuant to section 18(3) of the Retrenchment and Severance Benefits Act are deemed trade disputes according to section 23(2) of the Retrenchment and Severance Benefits Act.

16 Furthermore, section 4(1) of the Industrial Relations Act, Chap 88:01 establishes the Industrial Court as a Superior Court of Record and section 7(1)(a) of the Industrial Relations Act gives the Industrial Court power as a Superior Court of Record to hear and determine trade disputes. Since the issues raised in the Claim Forms and Statements of Case pertain to an employer-employee relationship, the Industrial Court is the proper forum for persons falling within the definition of “workers” under section 2 of the Industrial Relations Act and that the Claimants are workers under the Act.

17 The Defendant further averred that the Claims for unpaid severance are claims based on a statutory right and the statutes have provided a procedure in both the Industrial Relations Act and the Retrenchment and Severance Benefits Act for settlement of such trade disputes. Additionally, the High Court does not form part of the Industrial Relations regime as contemplated by those statutes and the High Court should not entertain this matter unless the Claimants are clearly outside the parameters of the Industrial Relations Act.

18 At the first Case Management Conference on 21 September 2020, the Defendant raised the issue of jurisdiction of the High Court. Counsel for the Claimants, however, argued that the Defendant is estopped from disputing the jurisdiction of the Court since it failed to file the appropriate application within the time prescribed for filing a defence and in fact has already filed a Defence and an Amended Defence. In this regard, counsel submitted that the Defendant has accepted that the Court has jurisdiction to try the Claims as provided for by CPR Part 9.7(5).

19 At the conclusion of the CMC on 21 September 2020, the Court gave directions for the filing of submissions on the issue of whether the Court has jurisdiction to hear this Claim. The Defendant and Claimants filed their written submissions on 12 October 2020 and 13 October 2020. The Defendant filed Reply Submissions on 27 October 2020.

20 The Court will now give its ruling on the Court's jurisdiction in both Claims and whether the Claims ought to be struck out.

II. Submissions

Defendant's Submissions

21 Counsel for the Defendant, Mr. Marcelin, submitted that the issues raised in the Claim Form and Statement of Case by the Claimants relate to the statutory right for all persons falling within the definition of “ worker” under section 2 of the Industrial Relations Act and that the Industrial Court is the proper forum to bring such claims unless the employee is not a worker under the Act. It was submitted that the Claimants have not provided any evidence that they fall...