Grenada Ports Authority v The Grenada Technical Allied Workers Union

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES GRENADA IN THE HIGH COURT OF JUSTICE CLAIM NO. GDAHCV2010/0309 IN THE MATTER OF THE FINDINGS OF THE ARBITRATION TRIBUNAL IN RESPECT OF A DISPUTE BETWEEN: GRENADA PORTS AUTHORITY Appellant and THE GRENADA TECHNICAL AND ALLIED WORKERS UNION Respondent Appearances: Mrs\ Celia Edwards, Q.C with Ms. Sabrita Khan for the Appellant Mr. Reynold Benjamin for the Respondent 2010: September 29; November 4; 2011 : June 2; September 21 2014: December 4. JUDGMENT

[1]PRICE FINDLAY, J.: This is an appeal filed by way of Fixed Date Claim Form by the Appellant against the decision of an Arbitration Tribunal. The Appellant’s Grounds of Appeal were as follows: Grounds of Appeal: – 1. The Tribunal erred in law in its interpretation of article 7(c) of the Collective Agreement between the Appellant and the Respondent in holding that· the mandatory 3 hour guarantee applied to continuous work. 2. The Tribunal erred in law in its interpretation of article 7(c) of the collective Agreement between the Appellant and the Respondent in holding that the mandatory 3 hour guarantee applied to overtime of which there has been prior notice. 3. The Tribunal erred in law in extending the provisions of article 7 (c) of the Collective Agreement between the Appellant and the Respondent beyond the call-out situation as defined in Article 9.”

[2]The Arbitration Tribunal had delivered its decision on the 20th December 2007. A letter from the Labour Commissioner was sent to the Chairman of the Tribunal seeking clarification on the interpretation which the Tribunal put on Article 7 of the Industrial Agreement between the parties.

[3]The Chairman of the Tribunal responded to the Labour Commissioner by way of letter dated 3rd June 2010. The contents of the letter reads as follows: ., Mr. Cyrus Griffith Labour Commissioner Ministry of Labour St. George’s Grenada Dear Labour Commissioner, Suite 2 WAB Court 21 Eighth Street Barataria Trinidad & Tobago 3 June 2010 · RR: Request for Clarification of Award in the Matter of Grenada Ports Authority and Grenada Technical and Allied Workers Union I refer to your request for clarification of the decision of the Arbitration Tribunal established to determine the dispute between the Grenada Ports Authority and the Grenada Technical and Allied Workers Union (T AWU) with specific reference to the issue of guaranteed overtime.

[4].., I have consulted with my colleagues, Mr. Christopher DeAIIie and Mr. Ruggles Ferguson, and they agree with the following clarification: • Workers in the TAWU Bargaining Unit are guaranteed three hours of overtime for any request to work overtime regardless of the length of time actually worked. • The guarantee of three hours overtime shall be limited to once in any twenty-four hours period. Accordingly, a worker who may be called up for overtime more than once in a twenty-four hour period would be guaranteed three hours for the first call up regardless of actual time worked. For any subsequent call up within the same twenty-four hour, the worker shall be paid for actual time worked at the agreed overtime rate. In the interest of further clarity I wish to illustrate how the application would work: If a worker is called out to work at seven o’clock in the morning and works until eight a.m., that worker is entitled to a guarantee of three hours pay for that one hour or any part thereof. If that same worker is asked to work in the afternoon after normal working hours, he would receive payment at the agreed overtime rate based on the actual hours worked in addition to the guaranteed three hours for the period of overtime worked during the morning. I trust that this serves to clarify the matter and should you require any further information; please do not hesitate to contact me. Sincerely, (Signed) Andre Vincent Henry Principal Consultant It is from this clarification that the Appellant seeks to appeal. The Respondent’s sole response is that the appeal has been filed out of time; depending on Section 63(1) of the Labour Relations Act. The appeal is filed pursuanf to Section 62(1) of the Labour Relations Act. “62(1) When a trade dispute has been referred to an Arbitration Tribunal under Section 49 and the Tribunal makes an award in settlement of the dispute, any party to the dispute may appeal to the High Court against the award on any question of law, but no appeal shall lie against the award on any question of fact.”

[5]This section gives any party to the dispute the right of appeal on questions of law but not on questions of fact. The Appellant responds to the Respondent. by citing Section 63(1) of the Labour Relations Act which provides: “63(1) Unless a period is expressly specified, the notice of appeal from an award or decision of an Arbitration Tribunal or the High Court as the case may be, to the Court of Appeal must be filed within four weeks from the date of the publication or delivery of the award or decision, as the case requires .”

[6]The Appellant contends that this section relates to Appeals from the Tribunal or the High Court to the Court of Appeal and that there is no time limit by which a party may appeal from the Tribunal to the High Court.

[7]They’ therefore contend that the appeal (in the absence of any time limitation) is not out of time and should proceed to its substantive hearing.

[8]The Appellant submitted to the Court, that in the present case, they have a right to appeal the ruling of the Tribunal and that there is no limitation period stated in the Labour Relation Act and thus the Limitations Act applies. It must be noted that time begins to run when the Appellant is notified of the decision of the Tribunal either by the publication of the award or by delivery of the award as the case may be.

[9]~ut the Limitation Act applies to the filing of a new action, and not an appeal, and even though the appeal in this matter is filed by way of Fixed Date Claim Form, it is still an appeal and the Limitation Act does not apply. It cannot be that a party to an arbitration can sit on an order and appeal after six (6) years has passed.

[10]The issue before the Court is whether the Appeal filed by way of Fixed Date Claim Form on the 8 th July 2010 was filed within a reasonable time or within any time limited by any legislation or CPR 2000.

[11]The Respondent submits that Section 63 of the Labour Relations Act puts the Appellant squarely outside of the time frame stated in the said section, and outside of the limits set out in CPR 2000, Part 60 which deals with appeals to the High Court.

[12]On reading Section 63 of the Labour Relations Act, it can be interpreted that the time for appealing from decisions of the Tribunal to the High Court is twenty-eight (28) days, and that is twenty-eight (28) days from the publication or delivery of the award or decision.

[13]The Appellant argues that the twenty-eight (28) days applies to appeals to the Couil of Appeal, but the Labour Relations Act gives no right of appeal directly to the Court of Appeal to any party to the tribunal. And so, it stands to reason that the only interpretation that can reasonably be put on Section 63, is that the twentyeight (28) day limitation period applies both to appeals to the High Court and appeals to the High Court and appeals from the High Court to the Court of Appeal.

[14]But if I am wrong on this point I will address the issue of appealing within a reasonable time from the date of the decision.

[15]With respect to CPR, Part 60 there is no limitation as to the time when an appeal is to be filed from the tribunal to the High Court under these Rules, and the answer to that question lies within the Labour Relations Act as stated before.

[16]Part 60.5 of the CPR deals not with the time for filing, but the time limited for serving the claim form and the grounds of appeal on the Respondent parties. Section 53 of the Labour Relations Act states: “53(1) If any question arises as to the interpretation of any award of an Arbitration Tribunal, the Minister or any party to the award may apply to the Tribunal for a decision on such question, and the Tribunal shall decide the matter after affording the parties to the trade dispute to which the award relates a reasonable opportunity to be heard by the Tribunal, or without such hearing provided the consent of the parties has first been obtained. (2) The decision of the Tribunal shall be notified to the parties having the same effect as if it were contained in the original award being as final and binding as the original award where appropriate.”

[17]This section gives any party to the tribunal or the relevant Minister to apply to the Tribunal on the question of the interpretation of an award and sets out the procedure which may be followed.

[18]Importantly, it goes on to state that the decision of the Tribunal on the interpretation shall have the same effect as if it were contained in the original award. ‘ \

[19]Here, the question on interpretation was raised some 2% years after the decision of the Tribunal’s initial award, and the explanation given by the Chairman is not materially different from what was written in the original award.

[20]If the parties or the Minister had read the original award carefully, to my mind, the need for clarification or explanation would have manifested itself earlier.

[21]The Court cannot have matters going on indefinitely, with possible appeals being filed years after the decision; there must be an end to litigation.

[22]The explanation given here is to be treated as part of the original award and in view of the Court’s ruling on the time limitation for appealing to the High Court being twenty-eight (28) days. I find that the appeal has been filed out of time and must fail on that ground.

[23]As I indicated earlier, if I am wrong on that issue, I would address whether the appeal was filed within a reasonable time.

[24]While the Act does not specifically give the Court a discretion to extend the time for the filing of an appeal, the Court may exercise its discretion to grant such an extension, if the party so requesting can show that there is good reason to do so.

[25]In considering whether the Court should exercise its discretion to extend time, the following issues have to be considered. In Kalmeft v Glencore International AG1 Coleman J set out the criteria the Court ought to consider in the exercise of that discretion. They are as follows: “(i) The length of the delay. This is an important consideration and one to which the court should attach considerable weight, having regard to the emphasis found in the Act itself and in the Commercial Court Guide on the ·, need to avoid delay in arbitration proceedings. (ii) Whether, in permitting the time limit to expire and the subsequent delay to occur, the guilty party acted reasonably in all the circumstances. In other words, for an extension of time to be granted a sensible explanation for the delay should be forthcoming. (iii) Whether the respondent to the application or the arbitrator caused or contributed to the delay. (iv) Whether the respondent to the application would by reason of the delay suffer irremediable prejudice, in addition to mere loss of time, if the application to extend time were granted. The possibility of prejudice to the innocent party is always a consideration. However, it does not follow from ·the absence of prejudice that the application should be granted. (v) Whether the arbitration has continued during the period of delay and, if so, what impact there would be on its progress or the costs incurred, if the court were to extend the time limit. [2002] I All ER 76 (vi) The strength of the substantive application under s.67 or s.68 or of the appeal under s.69. (vii) Whether in the broadest sense it would be unfair to the applicant to deny it the opportunity of having its substantive application or appeal heard. That consideration reflects the overriding objective of the CPR of enabling the court to deal with the case justly and the general principle of the Act to obtain the fair resolution of the dispute.”

[26]· In Nagusina Naviera v Allied Maritime lnc2 the Court of Appeal considered factors (i) through (iii) to be the primary factors for the Court to consider in concluding whether to exercise the discretion in favour of the Applicant. The Length of the Delay

[27]Th.i s factor has to be considered together with the reason for the delay and not in isolation. In previous cases, delays of eleven (11) weeks and fourteen (14) weeks were described as considerable periods of delay. Here we are dealing with a delay of over two (2) years.

Reason for the Delay

[28]This should be looked at with great care and must be addressed thoroughly. The reason here is that the issue arose only after two (2) years, but when one looks at the clarification sought, the Court is of the view th at it was not something so intricate or complex as to not have come to the attention of the parties earlier. The language used in the award was clear and concise and the explanation uses the same’ terms and phrases as in the original award. Nothing new arises on the clarification given, and the parties if they wished clarification ought to have done so within the time frame set out for appealing. [2002] EWCA Civil 1147 Contribution to Delay by Respondent

[29]There is no claim here that the Respondent had contributed in any way to the delay.

Prejudice to the Respondent

[30]There is no evidence that there is any prejudice to the Respondent in this matter.

Merits of the Appeal

[31]In this matter, on an analysis of the appeal, the Court finds the case of the Appellant to be fairly weak and the Court is not convinced that there is sufficient justification for extending the time to appeal, especially given the long delay in filing the appeal.

Fairness

[32]Given the circumstances, the Court finds that at this stage, it would not be fair to allow for an extension of time to file the appeal.

[33]In conclusion, it is clear from the authorities that a party wishing to challenge an arbitral award must act with expedition.

[34]Here the Appellant has simply waited too long and has not filed within the time set out in the Act nor within a reasonable time after the publication or delivery of the award. ·

[35]In the circumstances, the application is denied, with costs to the Respondent in the sum of $2,500.00.

[36]I thank Counsel for their assistance in this matter .