Waste Disposals (2003) Ltd v Communication Workers' Union

• Jurisdiction: Trinidad & Tobago
• Judge: Justice Vasheist Kokaram, J.A.
• Judgment Date: 05 July 2022
• Neutral Citation: TT 2022 CA 30
• Docket Number: Civil Appeal No. CA P061 of 2022 Application No. 016 of 2021
• Court: Court of Appeal (Trinidad and Tobago)
• Year: 2022

IN THE MATTER OF THE INDUSTRIAL RELATIONS ACT CHAPTER 88:01

AND

IN THE MATTER OF A COMPLAINT FILED BY THE COMMUNICATION WORKERS UNION PURSUANT TO SECTION 84(1) OF THE INDUSTRIAL RELATIONS ACT OF THE COMMISSION OF AN INDUSTRIAL RELATIONS OFFENCE IN BREACH OF SECTION 63 OF THE INDUSTRIAL RELATIONS ACT BY WASTE DISPOSALS (2003) LIMITED

AND

IN THE MATTER OF AN APPLICATION BY THE COMMUNICATION WORKERS' UNION FOR AN INTERIM ORDER UNDER THE PROVISIONS OF THE INDUSTRIAL RELATIONS ACT AND IN PARTICULAR UNDER SECTIONS 7(1) AND 10(1)(b) THEREOF AND/OR UNDER THE INHERENT JURISDICTION OF THE COURT

Between

Waste Disposals (2003) Limited

Appellant

and

Communication Workers' Union

Respondent

Before The Honourable Justice Vasheist Kokaram, J.A.

Civil Appeal No. CA P061 of 2022

Complaint No. ESD-IRO 059/2021

Application No. 016 of 2021

IN THE COURT OF APPEAL

(CHAMBER COURT)

Appearances:

Mr. St. Clair Michael O'Neil instructed by Mr. Marc Williams for the Appellant.

Mr. Newton George for the Respondent.

1 The Appellant, Waste Disposal (2003) Limited, is the employer of several workers, represented by the Respondent, Communication Workers' Union (“the Trade Union”), who were allegedly locked out of their place of employment. The Trade Union filed an industrial relation offence (“IRO”) against the Appellant before the Industrial Court alleging that the Appellant engaged in illegal industrial relations action against them. That IRO is due to be heard by the Industrial Court later this year. However, on December 21 ^st 2021 the Industrial Court granted an ex parte interim injunction against the Appellant ordering it to pay to the affected workers their wages, salaries, other allowances and any bonuses they would normally receive pending the hearing and determination of the IRO. The Appellant seeks to appeal this order and recognising that the time for doing so has long expired has now applied for an extension of time to do so. 1

2 For the reasons set out in this judgment the application is dismissed. In exercising my discretion whether an extension of time is just or gives effect to the overriding objective, I have considered all the circumstances set out in rule 26.7 CPR 2 and in particular gave due weight to the fact that the application was not made promptly, that there was no good reason to explain the delay, that an extension was not in the administration of justice, there would have been prejudice to the Trade Union who acted on the faith of a consent order entered between the parties to pay the workers in January 2022 and that the appeal was lacking in merit.

3 It is common ground that in considering whether to exercise my discretion to grant an extension of time pursuant to rule 26.1 (1) (d), I am to give effect to

the overriding objective. This would involve a consideration of a number of factors conveniently set out in rule 26.7 CPR. The principles governing the exercise of the discretion of the court to extend time are set out in Roland James v The Attorney General of Trinidad and Tobago Civ App No. 44 of 2014 which were considered in Vijay Samaroo v Inshan Ishmael Civil Appeal No. P381 of 2019, Mala Ragoonanan v The Attorney General of Trinidad and Tobago Civil Appeal No. P044 of 2020 and Lana Joseph v Carol Jogie Civil Appeal No. P006 of 2020. These factors are: promptitude (promptness of the application); intentionality (whether the breach of the timeline was intentional); good explanation (whether there is a good explanation for the breach or delay); general compliance (whether the Appellants have generally complied with all other relevant rules, practice directions, orders and directions); administration of justice (whether it is in the interests of the administration of justice to extend the time); fault (whether the failure to comply was due to the Appellants or their attorney); remedial action (whether the failure to comply has been or can be remedied within a reasonable time); trial date (whether the trial date or any likely trial date can still be met if relief is granted); prejudice; the merit of the appeal

4 A consideration of these factors of course is contextual and made against the backdrop of the relevant facts set out by the Appellant and the nature of the appeal. Before turning to each of these factors I set out a useful chronology by way of factual backdrop to this application.

Factual Backdrop

5 The Trade Union made a complaint pursuant to section 84(1) of the Industrial Relations Act Chap. 88:01 (“IRA”) of the commission of an IRO in breach of section 63 of the IRA by the Appellant. The Trade Union also applied for an ex parte injunction against the Appellant for the workers to return to work. Insofar as it is relevant section 63 of the IRA provides:

“63. (1) Where any industrial action is taken otherwise than in conformity with this Part—

(a) an employer taking such action is guilty of an industrial relations offence and, in addition to any other penalty under subsection (2), remains liable for the unpaid wages, salary and other remuneration that a worker may reasonably be expected to obtain in respect of any period during which the lockout action took place; and a worker may recover such wages, salary or other remuneration summarily as a civil debt, without prejudice to any other manner in which proceedings may be taken for the recovery thereof;

(b) a trade union taking such action is guilty of an industrial relations offence and, in addition to any other penalty under subsection (2), the Court may order the cancellation of its certificate of recognition, if any;

(c) subject to sections 64 and 65(2)(b), where a worker takes part in such action the employer may treat the action as a fundamental breach of contract going to the root of the contract of employment of the worker.

(2) A person guilty of an industrial relations offence under this section is liable—

(a) in the case of an employer, to a fine of twenty thousand dollars; or

(b) in the case of a trade union, to a fine of ten thousand dollars.”

6 On 21 ^st December 2021 the Industrial Court made its order ex parte (“December 2021 order”) that the workers be paid their wages, salaries allowances and any bonuses to which they would be normally entitled until the hearing and determination of the complaint. Notably, the power to compel an employer to pay such sums is normally made at the conclusion of the hearing of an IRO when the offence has been made out pursuant to section 63 of the IRA. To that extent, the effect of the order on its face appears to be granting final relief before the trial. An interim order granting in effect substantive or the main relief while exceptional is not irregular. See Cayne v Global National Resources PLC [1984] 1 All ER 225 at 238:

“Where a plaintiff brings an action for an injunction, I think that it is, in general, an injustice to grant one at an interlocutory stage if this effectively precludes a defendant from the opportunity of having his rights determined in a full trial. There may be cases where the plaintiff's evidence is so strong that to refuse an injunction and to allow the case to go through to trial would be an unnecessary waste of time and expense and indeed do an overwhelming injustice to the plaintiff. But those cases would, in my judgment, be exceptional.”

7 The onus lies on this Appellant to demonstrate the lack of merit in the application for interim relief.

8 However, it is also noted that the December 2021 order was accompanied by the usual undertaking with respect to damages by the Trade Union. To that extent if at the hearing of the IRO it was determined that the injunction was wrongly made, there would be an inquiry as to damages sustained by the Appellant as a result of the order. That would include the repayment of all the sums paid by the Appellant to the workers.

9 The Appellant complained that the December 2021 order was granted by the Industrial Court without consideration of the American Cyanamid principles 3. The matter did not end there as the Appellant fully participated in proceedings below to discharge the said injunction which it was entitled to do.

10 By an application of 23 ^rd December 2021 the Appellant applied to discharge

the injunction. On 30 ^th December 2021 the Trade Union filed a letter with the Industrial Court alleging contempt of the December order by the Appellant's failure to pay the said sums

11 Significantly, and in my view fatal to this application to extend time to appeal the December 2021 order, on 20 ^th January 2022 the Court entered a consent order which on its face resolved the issue of contempt and the discharge of the December 2021 order. The terms of that consent order was that the Appellant will pay to the workers on or before 27 ^th January 2022 their wages, salaries, other allowances and any bonuses to which they will be entitled until the hearing and determination of the complaint of the IRO. There has been no appeal against this order nor application to set aside this consent order in the Court below.

12 On 1 ^st February 2022 the Appellant re-filed an application to discharge the December 2021 injunction. It was met by another application for contempt by the Trade Union filed on 9 ^th March 2022. At a hearing on 23 ^rd March 2022 the application to discharge the injunction was dismissed and the Industrial Court ordered compliance with the consent order of January 2022 (“the March 2022 order”).

13 A Notice of Appeal 4 was filed against the March 2022 order and an application to stay the execution of that order pending the hearing of the appeal. The application for a stay of execution was withdrawn at a hearing before me on 7 ^th April 2022.

14 The Appellant now has...