Henderson J
```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## HOLDEN AT GEORGE TOWN, GRAND CAYMAN ### CAUSE NO. 463 OF 2008 **BETWEEN:** THE FINAL TOUCH LTD. **AND:** THE LABOUR APPEALS TRIBUNAL **AND:** NORMAN WILKINS --- ### APPEARANCES: - **For the Appellant:** Ms. Rosie Whittaker-Myles of Charles Adams Ritchie & Duckworth - **For the First Respondent:** Mr. Huw Moses of Appleby - **For the Second Respondent:** Mr. James Kennedy of Samson & McGrath --- ### JUDGMENT **Delivered by:** Hon. Justice Henderson **Date:** January 5, 2009 --- After a contested repayment by the appellant, The Final Touch Ltd., was terminated abruptly, the respondent Norman Wilkins complained to the Director of Labour. His complaint was dismissed by a Labour Tribunal but that decision was itself overturned by the Labour Appeals Tribunal ("LAT"). This appeal to the Grand Court from the Labour Appeals Tribunal is confined to a consideration of points of law. Mr. Wilkins had been employed by the Final Touch as the Installation Supervisor for a half year when his employment was terminated on January 15, 2008. On that day, Mr. Wilkins and another employee engaged in a heated verbal exchange which culminated in the other employee receiving cuts to her face and to the ear. --- ### RULE 14. Wy. the Page 1 of 7 ``` This transcription includes the visible content from the provided image, formatted according to the specified guidelines. The judgment text is partially obscured, so only the visible portions have been transcribed.
```markdown # Transcription of the Document ## Essential Question The essential question is whether Mr. Wilkins struck Mrs. Lot in the face during the argument. The question is whether he did so deliberately or accidentally while attempting to defend himself. He says that he was attempting only to move the employee's hand away from his face when either one of his fingers or his watch made contact with her face and caused the injuries. His version of events was corroborated by another employee who witnessed them. ## Management's Version The management of the Final Touch accepted the description of the altercation given by Mr. Wilkins, who said that he punched her in the face accidentally. The Final Touch decided to act on their understanding of what happened, immediately terminating Mr. Wilkins' employment. ## Tribunal Hearing The tribunal hearing was conducted on May 30th, 2008. The conclusion of the tribunal was somewhat equivocal. The panel said (at page three) that it was not convinced by the employer's version of events, nor by the testimony of the witnesses. However, the panel was satisfied that "Mr. Wilkins did in fact fashion Qds fortuitously in some way" and, in the Tribunal's view, that provided sufficient grounds for the employer to dismiss Mr. Wilkins immediately without severance pay. ## LAT Decision The LAT on September 2nd, 2008, set aside the decision on the ground that the employer had not acted reasonably. The LAT found that the Final Touch had failed to conduct a "reasonable investigation" before deciding upon a dismissal. ## Final Decision By the Final Commission, the decision to dismiss Mr. Wilkins had been made by the Final Touch Ltd. v. The Labour Appeals Tribunal et al. Cause No. 463 of 2008-26.02.09. --- **Page 2 of 7** ```
```markdown # Dismissal of Mr. Wilkins by Final Touch Touch from the outset; the LAT found that he was denied the right to put forward his version of events to his employer with a view to changing its mind. ## Relevant Sections of the Labour Law In dismissing Mr. Wilkins, the Final Touch was taking action under the Labour Law (2007 Revision) sections 51 and 52, which read in part: ### Section 51 (1) Subject to subsections (2) and (3), a dismissal shall not be unfair if the reason assigned by the employer for it is: (a) misconduct of the employee within section 52(1); and under the circumstances the employer acted reasonably. (3) The question whether an employer has acted reasonably for the purposes of this Part shall be determined in accordance with equity and the substantial merits of the case having regard to all the circumstances. ### Section 52 (1) An employer may terminate forthwith the employment of an employee where the employee has been guilty of misconduct in relation to his employment so serious that the employer cannot reasonably be expected to take any course other than termination. Such misconduct includes, but is not limited to, situations in which the employee has: (a) conducted himself in such a manner as clearly to demonstrate that the employment relationship cannot reasonably be expected to continue; (b) committed a criminal offence in the course of employment without the consent, express or implied, of the employer; ... ### LAT's Finding Starting with, the finding of the LAT was that the Final Touch had not acted reasonably in immediate discharging of section 51(1) because it had not made a considered decision as to Mr. Wilkins' section 52(1) of events to accept. If the version advanced by Mr. Wilkins and his fellow employee was an untruth, the blow to the face of his fellow employee was an incident. On that view of the matter, it would not be misconduct falling within 52(1) of the Labour Law and would not provide a justification for dismissal. In deciding to prefer the version of events advanced by the Final Touch, the LAT did not provide a justification for dismissal. In deciding to prefer the version of events advanced by the Final Touch, the LAT did not provide a justification for dismissal. --- **Ruforwhsen Touch Ltd. v. The Labour Appeals Tribunal et al.** **Cause No. 463 of 2008 26.02.09** **Page 3 of 7** ```
```markdown # The Appeal to This Court The Appeal to this court from the Labour Appeal Tribunal (LAT) is confined to pure questions of law. Section 79 of the Labour Law says: ### Section 79
**(1)** An appeal may be made to the Grand Court from a decision of the Labour Tribunal or the Appeals Tribunal upon a point of law only.
**(2)** Subject to subsection (1), no decision of a Labour Tribunal or the Appeals Tribunal shall be open to challenge or review in any court of law upon any grounds whatsoever. ### First Ground of Appeal The first ground of appeal is that the LAT "erred in law and in fact" by concluding that the appellant did not act reasonably because it failed to "undertake any form of investigation" before deciding to dismiss Mr. Wilkins. This ground goes on to argue that the LAT should have, but did not give consideration to a certain telling witness statement and a face-to-face meeting with Mr. Wilkins at which, it is alleged, the appellant was provided with an adequate opportunity to explain himself. ### Analysis of the First Ground These questions of this ground ("erred in law and in fact") are a reasonable challenge to the dismissal of the issue and, as a consequence, are fatal. The reasonableness of an investigation into the circumstances of a dismissal and, in particular, the reasonableness of any investigation said to be justification for the dismissal are pre-eminently questions of fact. At the most, such a ground of appeal raises mixed questions of law and fact. Here, the appellant urges me to find that the LAT erred in law by failing to give adequate consideration to the other side of the story and therefore acted unreasonably. ### Case Reference Rulsohrat v. The Labour Appeals Tribunal et al. Cause No. 463 of 2008 26.02.09 Page 4 of 7 ```
```markdown the LAT should have placed more weight upon the discussions which the Final Touch did have with Mr. Wilkins on the date of his termination and to find that, contrary to the decision of the LAT, these constituted a sufficient investigation of the circumstances to demonstrate that the employer acted reasonably. No question of law is involved. Quite simply, I am without jurisdiction to substitute my own view of the matter for that of the LAT. Group Number two seems to me to raise exactly the same question in a different form. The appellant says that the LAT "erred in law in not having regard or not having regard to the provision of section 51(3) of the Labour Law". That section directs the finder of fact to determine the question of reasonableness in accordance with Mr. Justice equity and the substantial merits of the case having regard to all the circumstances. There is no indication in the record that the LAT failed to do that. In its referral decision, it put particular emphasis upon its finding that the decision to dismiss the case against Wilkins was made at the outset, before the Final Touch had heard his side of the story, and before the telephone conversation and the face-to-face meeting of the parties had taken place. WH and Fition in same evidence, I would take the same view is immaterial. The fact that this concern underpins the decision does not demonstrate or even suggest that it disregarded the obligation imposed by section 51(3) of the Labour Law. The final ground is that the LAT erred in proceeding to hear the appeal without a complete transcript of the original hearing. --- Ruling: The Labour Appeals Tribunal v. The Final Touch Ltd. Cause No. 463 of 2008 26.02.09 ```
```markdown Mr. Moses for the LAT explained that a partial transcript was available but the evidence of the victim and some other bits of evidence were missing. He said the LAT felt it better to utilize what was available than to disregard the partial transcript. When only a partial record of the proceedings under appeal is available to an appellate tribunal, it must exercise special caution in the way it assesses the evidence. Tribunal members should remind themselves that the evidence which has been reduced to writing and is before them is likely to make a greater impact upon their thinking unless a special effort is made to take into account the missing evidence. There is no rule, however, which prevents the entertaining of an appeal in cases where only a portion of the evidence is available in written form. --- ### Role of the LAT For role of the LAT, the appeal from the decision of the LAT is dismissed. The chairman of the discussion at the hearing concerning the nature and scope of the proceedings id, the LAT on an appeal must serve his notice of motion and material in support upon the appellant as well as upon every other party who is “directly affected” by the decision. The LAT, however, is not the subject of considerable assistance. In some cases, the LAT’s presence at the hearing may be appeal in the fullest sense. As an adjudicative body whose decision is binding, the LAT should assume a neutral stance and not seek to advance arguments or comment upon the procedure which are unfamiliar to the court or to comment upon the nature of the issue. --- ### Rule 46(3) of the Labour Appeals Tribunal Act No. 463 of 2008 The Labour Appeals Tribunal Act No. 463 of 2008, section 26.02.09, provides the framework for the LAT’s role and procedures in handling appeals. The LAT is tasked with ensuring that the appeal process is fair and that all parties are given a reasonable opportunity to present their case. The LAT’s decisions are final and binding, subject to the provisions of the Act. --- ### Page 6 of 7 ```
```markdown # Relevant Questions of Policy in the Field of Labour and Employment It would be wrong in principle and might serve to taint the future independence of the tribunal for it to advance affirmative arguments in favour of its ruling or, in particular, to supplement the reasons it has already given. --- ## The Limited Role Played by the LAT in an Appeal The limited role played by the LAT in an appeal from one of its own decisions will not ordinarily entitle it to or make it liable to an award of costs. The LAT is never required to appear. It is best left to its own understanding of the matters in issue to determine whether its presence at the hearing would be useful. From time to time, this court tests the LAT to render its assistance during a hearing. As between the parties (excluding the tribunal itself), costs will ordinarily follow, which I award to Mr. Wilkins his costs of this appeal. --- ## Mr. Neche's Presence and Submissions Mr. Neche's tribunal was present during the hearing and rendered considerable assistance, which is appreciated. His submissions were confined within the parameters set out above. --- ## Order for Costs I see no reason, day of February, 2009, to make an order for costs for or against the LAT. --- ## Signature and Court Information **The Fifth** **Judicial and Court** **of Mowr** **Ruling** **Touch Ltd. v. The Labour Appeals Tribunal et al.** **Cause No. 463 of 2008 26.02.09** **Page 7 of 7**