Blackburn v LIAT (1974) Ltd

This opinion is in eight parts, namely:

This is an appeal by the employer against a decision of the Eastern Caribbean Court of Appeal (“the Court of Appeal”) in unfair dismissal proceedings. The principal issues concern (a) whether the Industrial Court of Antigua and Barbuda (“the Industrial Court”) applied the correct legal test for unfair dismissal, (b) the consequences if it did not do so and (c) whether the Industrial Court erred in obtaining relevant evidence more than a year after the trial but before giving judgment.

The employer is LIAT (I974) Ltd, an airline. The employee is Humphrey Michael Blackburn, an aircraft pilot. Both parties were appellants in the Court of Appeal. To avoid confusion, the Board will refer to them as “LIAT” and “Mr Blackburn”.

In this judgment the Board will use the following abbreviations:

The Labour Code includes the following provisions:

The ICA includes the following provisions:

Having set out the relevant statutory provisions, the Board must now turn to the facts.

LIAT is an airline operating in the Caribbean region. Mr Blackburn was a senior pilot employed by LIAT for 33 years with an unblemished record until his dismissal on 5 December 2011. Mr Blackburn was also the chairman of LIALPA.

There was a collective agreement between LIAT and LIALPA, which included the following provision at article 1 of section XIII:

On 6 and 20 November 2011 Mr Blackburn appeared on a local radio programme in which he made comments about LIAT’s management and safety matters. LIAT took exception to those comments and decided to dismiss Mr Blackburn summarily.

On 5 December 2011 LIAT summoned Mr Blackburn to a meeting and handed a letter to him which stated:

Mr Blackburn was aggrieved by his dismissal. After unsuccessful attempts to resolve the matter by mediation, he commenced the present proceedings.

By a notice of reference filed in the Industrial Court on 18 June 2013, Mr Blackburn claimed against LIAT compensation and damages for unfair dismissal. In the accompanying employee’s memorandum, Mr Blackburn contended that his remarks on the radio did not amount to misconduct. He further contended that the summary dismissal, without any prior warning, was a breach of good industrial relations practice and a breach of the collective agreement between LIAT and LIALPA. On 13 March 2014 Mr Blackburn filed witness statements made by himself and a fellow pilot, Mr Thompson, who was secretary of LIALPA.

LIAT, despite repeated reminders from the court, failed to serve any memorandum setting out its defence or any witness statements. Mr Blackburn applied for summary judgment. The court directed LIAT to file its affidavit in opposition to that application and both parties to file their skeleton submissions. Mr Blackburn duly filed his skeleton submissions, but LIAT disregarded the court’s directions. The court listed the case for trial on 24 November 2014.

On 20 November 2014 LIAT applied for an extension of time to serve its memorandum, which it produced in draft. The court, unsurprisingly, refused that application.

The trial proceeded on 24 November 2014 without any form of pleading or any evidence from LIAT. The dismissal letter dated 5 December 2011 was before the court, because that formed an exhibit to Mr Blackburn’s witness statement. Mr Blackburn and Mr Thompson gave oral evidence. The court permitted Mr Kentish, LIAT’s attorney, to cross-examine.

Mr Blackburn referred to the statements attributed to him in the letter of dismissal. He said that he had heard a recording of the interview but did not have a copy of it (transcript p 77). Mr Blackburn admitted making some of the statements alleged. He contended that in the second sentence of the extract from the interview on 6 November 2011 quoted in the letter, where he was recorded as saying that “Ms Ramsey doesn’t, I don’t believe she’s an educated person”, there was a pause after the words “Ms Ramsey doesn’t” and then again after the words “I don’t believe”; what he was actually saying was that Ms Ramsey was an educated person. Mr Blackburn contended that he had made statements about prevailing issues of management and safety with which he was familiar by virtue of his seniority and that his comments were made as a union leader and an employee who was off duty. He stated that his comments that LIAT’s present standards of safety and operations were less than when only two captains (Murray and Lake alone) were running the flight operations, were said in response to LIAT’s CEO’s claims on an earlier radio programme in the context of safety and crew that it was necessary to have six managers in its flight operations department. He also stated that LIAT had referred to safety concerns in its Safety Newsletter.

The court invited the parties to lodge written submissions after the hearing, but only Mr Blackburn did so. There was then a delay of two-and-a-half years before the court gave judgment. During that period the court stated on occasions that its judgment would soon be ready, but those statements proved to be mistaken. Whilst the Board cannot commend such a leisurely approach to preparing judgments, nothing turns on the delay in this case. So, there is no need to go through the correspondence on that aspect.

On 2 December 2014 LIAT applied for the order refusing permission to file an employer’s memorandum out of time be set aside. The court heard this application on 14 January 2015. LIAT’s first argument for re-opening the proceedings (transcript p 2) was that the court was hampered by not having the best evidence, because the transcripts of the two radio programmes had not been produced at the November hearing. The court reserved its decision.

The court did not accede to LIAT’s application (indeed the court eventually rejected it at paras 72-79 of the main judgment) but it did see force in LIAT’s argument about the need to see transcripts of the two radio programmes. On 26 January 2016 the registrar of the Industrial Court wrote to Richards & Co, LIAT’s attorneys, asking for the transcripts. Richards & Co duly sent the transcripts (which had been prepared by LIAT’s communications manager) to the registrar by return of post.

On 27 January 2016 Rhudd & Associates, Mr Blackburn’s attorneys, wrote to the registrar asking for copies of the transcripts, so that Mr Blackburn could verify their authenticity. The registrar promptly sent copies to Rhudd & Associates. In her covering letter she wrote:

In letters to Rhudd & Associates dated 28 January and 3 February 2016 and to Richards & Co dated 3 February 2016 the registrar requested copies of the full audio recordings, so that it could assess the authenticity and completeness of the transcripts. Richards & Co took their time. They provided the recordings to the court and to Rhudd & Associates in two instalments, namely on 20 June and 12 September 2016.

Meanwhile, on 7 June 2016, Rhudd & Associates filed a Notice of Objection to Admission of Transcript. The notice argued that the court should decide the case on the basis of the evidence presented on 24 November 2014. Para 10 of the notice stated:

Richards & Co responded robustly on 5 July, pointing out that the court had power to request further evidence from litigants before coming to a decision. That was clearly a reference to ICA section 9(1), although Richards & Co did not specifically cite that well known provision.

The court was unmoved by the Notice of Objection to Admission of Transcript. On 23 September 2016 the registrar, at the direction of the President, wrote to Rhudd & Associates as follows:

By 23 September it was clear that the court would be paying close attention to the transcripts and the audio recordings. If Mr Blackburn had wished, he could (through his attorneys) have (a) sent in written comments on the transcripts and recordings, or (b) requested an oral hearing to deal with the new evidence, possibly including further oral evidence from himself. Under ICA section 9(1), the court would have been likely to accede to such an application. In the event, however, Mr Blackburn and his attorneys did not take that course. Instead they continued to press the court to expedite its judgment. That impatience is readily understandable.

On 13 June 2017 the court handed down its written judgment. The court, by a majority of 3 to 1, held that the dismissal was unfair, but compensation should be reduced by 65% because of Mr Blackburn’s contribution to his dismissal. One member dissented because in his view the dismissal was fair. References to ‘the court’ in the following paragraphs are to the majority of the court.

At para 94, the court said this about Mr Blackburn’s Notice of Objection to Admission of Transcript:

Turning specifically to unfair dismissal, after considering the offending passages in the radio interviews in their full context, the court reasoned as follows:

Turning to the contribution issue, the court carefully evaluated Mr Blackburn’s oral evidence as well as what he had said in the two radio programmes. The court concluded as follows:

LIAT was aggrieved by the finding of unfair dismissal. Mr Blackburn was aggrieved by the finding that he had contributed to his own dismissal. Accordingly, both parties appealed to the Court of Appeal.

By a notice of appeal filed on 20 July 2017, Mr Blackburn appealed against the finding that his compensation should be reduced by 65%. His two grounds of appeal were (i) that the Industrial Court had erred in finding that he had significantly contributed to his dismissal; (ii) that the Industrial Court had erred in relying upon the transcripts of the radio programmes, because (a) they were not properly before the court and (b) Mr Blackburn had not been given an opportunity to test their veracity or authenticity.

By a counter-notice of appeal, filed on 9 August 2017, LIAT appealed against the finding of unfair dismissal. LIAT’s grounds were (i) that the Industrial Court had applied the wrong test; (ii) that the Industrial Court had erred in concluding that breach of the procedure contained in the collective agreement was sufficient to render the dismissal unfair; and (iii) that the Industrial Court had erred in its finding that the dismissal was unreasonable, since such a finding was against the weight of the evidence.

The Court of Appeal heard the appeal and the cross-appeal on 16 July 2018. The court handed down its reserved judgment on 20 September 2018. It allowed Mr Blackburn’s appeal and dismissed LIAT’s cross-appeal.

Very sensibly, the Court of Appeal dealt with the cross-appeal first. It held that the Industrial Court had applied the correct test and considered all relevant factors. The Court of Appeal declined to interfere with the Industrial Court’s assessment of the evidence. Indeed, it could not have done otherwise: see ICA section 10(6). Accordingly, the Court of Appeal upheld the finding of unfair dismissal.

Turning to Mr Blackburn’s appeal, the Court of Appeal held that the Industrial Court had erred in obtaining further evidence, namely the transcripts and audio recordings, after the trial had ended. At para 90 the court said:

The Court of Appeal quashed the 65% contribution finding and remitted the case to the Industrial Court, so that that court could conduct the assessment of contribution solely on the basis of the evidence adduced during the trial.

LIAT was aggrieved by the Court of Appeal’s decision on both issues. Accordingly, it has appealed to the Privy Council.

By a notice of appeal filed on 2 April 2019 LIAT appealed to the Judicial Committee of the Privy Council on two principal grounds, namely (i) the Industrial Court applied the wrong test and therefore the Court of Appeal had erred in upholding the finding of unfair dismissal; (ii) alternatively (if Mr Blackburn was unfairly dismissed), then the finding of 65% contribution should be reinstated; it was a proper exercise of the Industrial Court’s powers to obtain the transcripts and recordings after the trial, and the Court of Appeal erred in holding otherwise.

The Board heard this appeal on 18 February 2020. Mr Douglas L Mendes SC appeared for the appellant, LIAT, leading Mr Imran Ali. Mr Ruggles Ferguson appeared for the respondent, Mr Blackburn, leading Mr Septimus Rhudd and Ms Amy Bullock. The Board is grateful to all counsel for their assistance.

Mr Blackburn has succeeded on this issue, both at first instance and on appeal. LIAT contend that both courts below fell into error, because the Industrial Court applied the wrong test and the Court of Appeal approved that test.

There are similarities between (a) the provisions of the Antigua and Barbuda legislation set out in Part 1 above and (b) legislation in Great Britain on unfair dismissal. The GB legislation was formerly contained in EPA section 57 and is now contained in ERA section 98. Both the Labour Code and the GB legislation require consideration of the employer’s reason for dismissing. They also require an assessment of whether the employer acted reasonably in dismissing the employee for that reason. Both the ICA and the GB legislation require the relevant tribunal to reach a decision in accordance with equity and the substantial merits of the case. In those circumstances, both parties have placed some reliance on the general principles emerging from UK authorities on unfair dismissal. The Board accepts that the general principles emerging from the UK authorities are relevant to the application of the Labour Code and the ICA.

On the other hand, there are many differences in wording between the Antigua and Barbuda legislation and the GB legislation. There is much Caribbean authority on the specific provisions of the Caribbean legislation, to which the Board must have regard. As counsel have demonstrated, the legislation of Trinidad and Tobago in this field is closely aligned with that of Antigua and Barbuda. In particular, sections 10(6) and 18(2) of the Trinidad and Tobago Industrial Relations Act (TTIRA) are identical to ICA sections 10(6) and 17(1). Therefore, the Trinidad and Tobago authorities, as well as Antigua and Barbuda authorities, will require consideration in this appeal.

One important feature of the Antigua and Barbuda legislation is that ICA section 10(6) accords special status to the decision of the Industrial Court. Accordingly, the Board held in Sundry Workers (represented by the Antigua Workers Union) v Antigua Hotel and Tourist Association [1993] 1 WLR 1250 that there could be no appeal against awards of compensation for dismissals that were “not in accordance with the principles of good industrial relations practice”.

The Trinidad and Tobago Court of Appeal explained the rationale of TTIRA section 10(6) and its interrelationship with section 18(2) of TTIRA in Flavourite Foods Ltd v Oilfield Workers’ Trade Union (unreported) 26 January 1983. Sir Isaac Hyatali CJ, delivering the first judgment, said:

The Trinidad and Tobago Court of Appeal developed this jurisprudence further in Caroni (1975) Ltd v Association of Technical, Administrative & Supervisory Staff (2002) 67 WIR 223. At p 226c-g de la Bastide CJ said:

LIAT does not challenge any of that jurisprudence. Indeed, LIAT relies upon it. LIAT contends that it can circumvent ICA section 10(6) by identifying an error of law which underlies the Industrial Court’s decision. In other words, LIAT is seeking to appeal pursuant to ICA section 17(1), “without running foul of the prohibition contained in section 10(6)” (the test formulated in Caroni).

Mr Mendes relies upon the House of Lords’ decision in Polkey v A E Dayton Services Ltd [1988] AC 344 as establishing a general principle which is applicable in Antigua and Barbuda, as well as the UK. The employer in Polkey dismissed a van driver without any prior warning or consultation. That was a breach of the code of practice then in force under the EPA. The House of Lords held that such a procedural flaw would render a dismissal unfair, except in the rare case where a reasonable employer could properly take the view that whatever the employee might say would make no difference. Although we have heard no submissions on the point, it appears from the textbooks that the Polkey principle is still good law in the UK, subject to statutory exceptions introduced by the Employment Act 2002 and the Employment Act 2008. Be that as it may, both counsel have proceeded on the basis that the Polkey principle applies in Antigua and Barbuda. Both counsel place reliance on Whitbread plc v Hall [2001] ICR 699, which is to the same effect as Polkey. Mr Ferguson neatly summarised Whitbread in para 107 of his printed case: the ‘band of reasonable responses’ test applies to both the substantive and procedural elements of unfair dismissal.

The real issue between the parties here is not as to what legal principle is applicable. It is whether the Industrial Court, and by extension the Court of Appeal, correctly applied the Polkey / Whitbread principle in the circumstances of the present case. Mr Mendes submits that they did not. Mr Ferguson submits that they did.

The relevant section of the Industrial Court’s judgment is set out in Part 3 above. In the Board’s view, Mr Mendes is correct in his submission that the Industrial Court did not precisely adopt the test laid down in Polkey and Whitbread. Therefore, he submitted, the case should be remitted to the Industrial Court so that that court can re-assess the evidence, applying the correct legal test.

Mr Ferguson submitted that it is clear how the Industrial Court would have applied the correct legal test. See paras 119 to 127 of that court’s judgment. The court would surely have given the answer ‘no’, if it had asked itself the question: “is this one of those rare cases where a reasonable employer could properly take the view that whatever the employee might say would make no difference?” Mr Ferguson also relies upon ICA section 17(3), which enables the Court of Appeal (and by extension the Privy Council) to dismiss an appeal if it is satisfied that no substantial miscarriage of justice has actually occurred.

In response to questions from members of the Board, Mr Mendes stood his ground on this point courteously, but firmly. It is not for this court, he submitted, to trespass into the exclusive domain of the Industrial Court. It is for the judges of that court alone, equipped with their superior knowledge of industrial relations, to provide the answer to the relevant legal question. In support of this submission Mr Mendes relied upon the Privy Council’s decision in Sundry Workers and the Trinidad and Tobago Court of Appeal’s decisions in Flavourite and Caroni. He submitted that ICA section 17(3) must be read together with section 10(6).

The Board cannot accept Mr Mendes’ argument for two reasons. First, ICA section 10(6) accords special status to matters which the Industrial Court has decided, not to matters which the Industrial Court has not decided. Secondly, whilst of course the Act must be read as a whole, ICA section 10(6) does not eviscerate section 17(3) to the extent suggested. In the present case the Board is satisfied that no substantial miscarriage of justice has occurred. It is obvious how the correct legal test would have been applied by the Industrial Court. The Industrial Court has already set out its thinking very clearly. No useful purpose would be served by the Industrial Court re-convening to hear this case in 2020, some nine years after the dismissal occurred.

For these reasons, LIAT’s appeal is dismissed. The finding of unfair dismissal stands.

The sole reason why the Court of Appeal quashed the assessment of 65% contribution was because the Industrial Court had impermissibly received and considered transcripts and audio recordings after the trial.

Mr Mendes submits that the Industrial Court, in obtaining the transcripts and recordings post-trial, was properly exercising its powers under ICA section 9(1). Mr Ferguson, on the other hand, submits that the court had no power to receive the new material, since it had not acceded to LIAT’s application to re-open the trial.

The first question which arises, therefore, is whether the following phrase in section 9(1) is broad enough to include obtaining additional evidence after the end of a trial:

The answer to this question can be derived from the last part of section 9(1). That requires the Industrial Court to give the parties the opportunity “of adducing evidence in regard thereto”. If the section is only talking about evidence obtained before or during the trial, such a provision would be pointless. Self-evidently the parties have an opportunity to adduce evidence in regard to such material. The final words of section 9(1) indicate that this is a broad provision. It empowers the court to obtain further material after the trial. For that reason, it adds a requirement that the court should give the parties “the opportunity, if they so desire, of adducing evidence in regard thereto”.

Obviously, it is far better that all relevant evidence should be before the Industrial Court during the course of the trial. But, in an imperfect world, things sometimes go wrong. Section 9(1) is a safety valve. It enables the court, when justice so requires, to obtain additional evidence after the end of a hearing.

The Industrial Court explained that it was relying upon its power “to obtain evidence at its own initiative”: see para 94 of the court’s judgment (set out in Part 3 above). This was clearly a reference to ICA section 9(1). The Court of Appeal, by contrast, made no reference to ICA section 9(1), even though that provision was cited in para 40 of counsel’s skeleton argument. Instead the Court of Appeal held: “we have no doubt that it [ie the Industrial Court] could not seek to obtain evidence on its own volition after the close of the trial”. That was a misstatement of the law.

The transcripts and recordings were plainly important evidence. The Industrial Court needed that evidence in order fairly to consider Mr Blackburn’s case. The court needed to consider whether Mr Blackburn paused on the occasions which he identified. The court needed to consider whether Mr Blackburn’s evidence about Ms Ramsey was mis-transcribed, as he asserted. The court also needed the transcripts in order to assess Mr Blackburn’s contentions about the context in which the offending passages occurred. Although it is unfortunate that the trial proceeded in the absence of the transcripts and recordings, it cannot possibly be said that the Industrial Court erred in the exercise of its power under section 9(1) by calling for that material after the trial and before giving judgment.

The next question which arises is whether the Industrial Court complied with the last limb of ICA section 9(1). Was Mr Blackburn given the opportunity, if he so desired, of adducing evidence in regard to the transcripts and audio recordings? Mr Mendes submits that Mr Blackburn was given such an opportunity. Mr Ferguson submits that Mr Blackburn was not given such an opportunity.

The Board does not find this to be an easy question.

As noted in Part 3 above, by letter dated 27 January 2016 the registrar invited Mr Blackburn to compare the transcripts with the audio recordings and to “let the Court have his objections and comments, if any”. It became possible for Mr Blackburn to do that exercise in September 2016, once his attorneys had received all the transcripts and recordings. On the other hand, once the court had received the transcripts and recordings and had identified these as important evidence (per the registrar’s letter dated 23 September 2016), the court never specifically notified Mr Blackburn and his attorneys that they had an entitlement under ICA section 9(1) “to adduce evidence in regard thereto”. Nor did the court inquire of the attorneys whether they and their client wished to exercise that right.

As a matter of good practice, when the Industrial Court exercises its power under ICA section 9(1) to obtain additional evidence post-trial (hopefully a relatively rare event), the court should draw the attention of all parties to their rights under section 9(1) “to adduce evidence in regard thereto”.

In the present case, however, the Board has come to the conclusion that the court did just enough to satisfy the statutory requirement. The registrar invited Mr Blackburn’s comments by her letters dated 27 January and 3 February 2016. The registrar wrote a number of letters to the attorneys on both sides about the additional evidence which the court required. The parties may not have been familiar with ICA section 9, but their attorneys would have been. Indeed, in their letter to the registrar (copied to Rhudd & Associates) dated 5 July 2016 Richards & Co specifically stated that the court was “empowered to request further evidence from litigants before coming to a decision”. That was a reference to ICA section 9. It must have been self-evident to Mr Blackburn’s attorneys that they were entitled to apply for an oral hearing at which they could make submissions and/or adduce evidence about the new material.

In the event, Mr Blackburn, through his attorneys, never did request a further hearing at which he could give further evidence, or at which his advocate could make further submissions. Mr Ferguson has forcefully argued that the Notice of Objection to Admission of Transcript constituted such an application. Mr Ferguson relies in particular on para 10 of that notice (set out in Part 3 above). The Board cannot accept that submission. The whole of the notice is a robust and well-drafted argument, which was intended to deflect the court from persisting in its course of admitting further evidence. Neither para 10 nor any other part of the notice says “if, despite our arguments to the contrary, you decide to let this evidence in, then please hold a further oral hearing”.

In the event, the Notice of Objection to Admission of Transcript did not achieve its objective. By 23 September 2016, at the latest, it was clear to all parties that the court had admitted the further evidence and was attaching considerable importance to it. There was a gap of some nine months between then and 13 June 2017, when the court delivered judgment. During that period Mr Blackburn and his attorneys could easily, if they wished, have sent in written comments upon the transcripts and audio recordings. They could easily, if they wished, have applied to the court for a further hearing at which to make submissions and / or to adduce oral evidence. They did not do so. Given the provisions of section 9(1), the court was unlikely to have refused such an application.

Drawing the threads together, the Board concludes that the Industrial Court properly exercised its power under ICA section 9(1) to admit the transcripts and audio recordings. The Court of Appeal erred in holding otherwise. Since this was the only ground upon which the Court of Appeal quashed the Industrial Court’s assessment of compensation, it follows that the Industrial Court’s finding of 65% contribution must be reinstated.

For the reasons set out in Part 6 above, the Board will humbly advise Her Majesty that LIAT’s appeal against the Court of Appeal’s decision to uphold the finding of unfair dismissal should be dismissed. For the reasons set out in Part 7 above, the Board will humbly advise Her Majesty that LIAT’s appeal against the Court of Appeal’s decision to set aside the Industrial Court’s assessment of contribution should be allowed.

The Board will consider submissions on costs from both parties provided that these are made within 21 days.