R v Industrial Dispute Tribunal and Hotel Four Seasons Ltd.ex parte The National Workers' Union

• Jurisdiction: Jamaica
• Judge: Smith, C.J.
• Judgment Date: 08 December 1983
• Court: Supreme Court (Jamaica)
• Docket Number: M. 29 of 1983
• Date: 08 December 1983

Supreme Court

Smith, C.J., Wolfe and Downer, JJ.

M. 29 of 1983

R

and

Industrial Dispute Tribunal and Hotel Four Seasons Ltd.; Ex Parte The National Workers' Union

R. Carl Rattray, Q.C., and Brenda Warren for Applicant

Emil George, Q.C., and Edward Ashenheim for Respondent, The Hotel Four Seasons Ltd.

R.G. Langrin watching for Respondent, The Industrial Disputes Tribunal.

Certiorari - Application to —

Labour law — Strike — Dismissal in connection with strike — Whether justified — When right to strike arises.

Facts:

Application made by hotel workers to quash decision of Industrial Disputes Tribunal that dismissal of hotel employees was justified. Whether employees had repudiated their contracts by taking strike action. Whether one worker had abandoned her job —

Held:

Meaning of abandonment in law of contract. Substance and not form or label must be examined.

Smith, C.J.

1 This is an application, by leave of Orr, J. granted on 16 May, 1983, for an order of certiorari to quash the award of the Industrial Disputes Tribunal (“the Tribunal”) made on 28 March 1983 in respect of an industrial dispute between the Hotel Four Seasons Ltd. (“the Company”) and the National Workers Union (“the Union”), which held bargaining rights for workers at the Company's hotel. The terms of reference to the Tribunal stated the dispute to be “over (the) termination of employment” of fourteen workers named in the reference.

2 The dispute arose out of the suspension of the chief delegate of the Union at the hotel, Miss Delores Reid, for ten days from 5 June 1982 by the Manager of the hotel, Mrs. Helga Stoeckert. Miss Reid went to the hotel on the morning of 15 June, 1982 and spoke with Mrs. Stoeckert with a view to resuming her duties but was not allowed to do so. Thereupon, there was a stoppage of work by nine workers, three others arrived later but did not assume their duties for that day. This stoppage of work was without the prior approval of the Union. On the following day, on the instruction and direction of the Union, the strike of the previous day continued. On 17 June letters were written to the twelve workers stating that they were told on 15 June that if they did not return to work or start their work, as the case may be, they would be considered as having abandoned their jobs; since they did not comply, they had abandoned their jobs (in the case of those who did not return to work) or were considered to have abandoned their jobs (in the case of those who did not start working) and their employment with the hotel ceased. A thirteenth worker, Colleen Lattibeaudiere, was on vacation leave on 15 June and was due to resume on or about 23 June but did not do so.

3 A dispute between the Company and the Union arising out of the suspension of Miss Reid was reported to the Ministry of Labour and conciliation meetings were held on 24 and 28 June 1982. On 21 July 1982 the Minister referred the dispute relating to the “termination of employment” of the fourteen workers (including Miss Reid) to the Tribunal for settlement. On 28 March 1983 the Tribunal awarded that (i) twelve workers (apart from Lattibeaudiere and Reid) “were dismissed by the Hotel and their dismissals were justifiable”, (ii) Colleen Lattibeaudiere abandoned her job and (iii) the services of Delores Reid “have not been terminated.”

4 The ground upon which the application before us was based was that the Tribunal was wrong in law in making certain of the findings upon which its award was based and in making the award that it did in respect of the twelve workers and Colleen Lattibeaudiere. The submissions in respect of these findings and the award will be examined hereafter, but a fundamental submission was made on behalf of the Union which will entitle the Union to succeed in its application, if the submission is valid. The submission was that there is a right to strike which is accepted both in this Country and in England and that when this right is exercised the contracts of employment of the workers involved are suspended during the strike and revived when it is over.

5 The contention is that the “right to strike”, which it is said exists, is a legal right which affects the common law rights of parties to a contract of employment by annulling the right of the employer to terminate the contract for breach during a strike on the refusal of the employee to perform his duties under the contract. The nature of this “right” is put this way by Sir Otto Kahn-Freund in Labour and the Law (2nd edn.) (1977) p. 240:

“If the worker has a ‘right’ to strike, he has more that a mere ‘freedom’ from criminal or civil liability or administrative intervention. He has a positive right which he cannot bargain away, especially not by the contract of employment. The exercise of the right has priority over any contractual obligations he may have incurred “

6 The submission that the “right to strike” is accepted in England is, apparently, based on statements made by Lord Denning, M.R. in Morgan v. Fry and Others [1968] 3 W.L.R. 506. The learned Master of the Rolls said, at p. 513:

“It has been held for over 60 years that workmen have a right to strike (including therein a right to say that they will not work with non-unionists) provided that they give sufficient notice beforehand “

7 Later in his judgment he said, at pp. 515, 516, in reference to a “strike notice”:

“The truth is that neither employer nor workmen wish to take the drastic action of termination if it can be avoided. The men do not wish to leave their work for ever. The employers do not wish to scatter their labour force to the four winds. Each side is, therefore, content to accept a ‘strike notice’ of proper length as lawful. It is an implication read into the contract by the modern law as to trade disputes. If a strike takes place, the contract of employment is not terminated. It is suspended during the strikes and revives again when the strike is over. “

8 The authorities show that until this latter statement by Lord Denning no English case had decided, nor had any authoritative pronouncement been made, that workers during an industrial dispute had a legal right to strike in the sense which I have stated above. Kahn-Freund referred to “this dictum” by Lord Denning as “an isolated event” and said that “the problem of the effect of the strike on the contract of employment remains obscure, and it is likely that the ‘right to strike’ remains — despite Lord Denning's dictum — a political rather than a legal concept, just like the ‘right to work.” ( Ibid p.269).

9 The “right to strike” must be distinguished from a “freedom to strike.” The authorities establish that in England since 1906 workers involved in industrial disputes have had the freedom to strike because by enactment of the Conspiracy and Protection of Property Act, 1875 it was no longer a criminal offence for them to take part in a strike and by enactment of the Trade Disputes Act, 1906 they were no longer subject to civil liability for doing so. (Kahn-Freund op. cit. p. 232). Sir Otto Kahn-Freund says (ibid p. 233):

“There is no rule proclaiming this freedom; there is merely a series of exceptions from rules of the common law, as it was held by the courts to exist.”

10 So, obviously, there was no common law “right to strike”. The question whether or not there was such a right at common law arose for decision in Collymore and anor. v The Attorney General (1967) 12 W.I.R. 5 before a very strong bench of the Court of Appeal of Trinidad and Tobago consisting of Wooding, C.J., Phillips and Fraser, JJ.A. Wooding, C.J. did not decide the question directly, apparently not finding it necessary to do so in order to decide the constitutional issue which the action raised. However, after reviewing the authorities and the local statutes, he said (at p. 15) that he had done so “to show why I prefer to regard the so-called right or freedom to strike as what in essence it is, a statutory immunity.” Phillips, J.A, did not think it necessary for determination of the appeal to explore “the true juristic nature” of the alleged right; he was content to agree with the trial judge's opinion that no “positive right” to strike existed “in the sense of a right which is legally enforceable or the infringement of which gives rise to legal sanctions” (see p. 32). Fraser, J.A. met the question head-on. After a very detailed and exhaustive examination of the relevant authorities and statutes he said, at p. 45:

“…. every right is a legally protected interest, regardless of the source of the right whether by statute, common law or equity, and is enforceable in a court of law. The right which the appellants claim is an individual and personal right to strike or more accurately, to take part in a strike. Careful examination of the English cases will disclose that there has never been a right to strike recognised by the common law nor has it been so declared by statute. The exceptions or immunities which individuals have enjoyed singly and collectively in their freedom to associate in trade unions are not enforceable rights exigible against the world. There is no case decided in Great Britain which comes near to recognising such a right. On the contrary there is a great deal of learning supporting a contrary view.”

11 The learned judge said later, at p. 47”

“I have said enough I think to indicate that in my judgment the common law has never recognised a right to strike nor has such a right ever been declared by statute.

In many countries of the world, principally in the Latin-American republics, the right to strike is expressly recognised by law. On the other hand in this country as in many other countries sharing the heritage of the common law there has never been an enforceable right to strike by anybody, anywhere at any time. It would seem that the belief that such a right exists, stems from the proposition...