Sanderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS - Govt.
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. 99 OF 2004
IN THE MATTER OF the Labour Law (2001 Revision)
(ex parte)
RULING ON APPLICATION
PROCEEDINGS heard before
The Honourable Mr. Justice SANDERSON,
on the First day of March of 2004.
APPEARANCE:
ON BEHALF OF THE APPELLANT Mr. C. Allen
RULING ON APPLICATION
This is an application by Sunshine Car Rental and Mobile Mechanic for a stay of proceedings pursuant to Section 79 of the Labour Law (2001 Revision) pending its appeal from a decision of the Labour Appeals Tribunal. The Labour Appeals Tribunal gave its decision on January 23rd, 2004, on an appeal from a decision of the Labour Tribunal made in September 2002. The Labour Tribunal had concluded that the respondents, who were two employees of the appellant, had been unfairly dismissed and it made awards of severance and damages. The Labour Appeal Tribunal upheld that award in principal, but reduced the amount of the award for the reasons set out in its judgment. The appellant appeals that decision primarily on two bases:
(1) That the appellant did not have available to it certain documents that the respondents provided to the Labour Tribunal hearing in 2002. Its primary argument is that it did not
receive a fair hearing on the basis that it did not have those documents available to it either at the hearing or at the appeal.
(2) Secondly, because the Labour Appeals Tribunal found certain errors in the Labour Tribunal decision, it was not therefore open to the Labour Appeals Tribunal to vary the decision of the Labour Tribunal, but that the decision must be set aside in its entirety and a re-hearing ordered.
Those being the two main features of the appeal, Mr. Allen has relied upon Section 79(1) and (3) of the Labour Law which provide:
"79. (1) An appeal may be made to the Grand Court from a decision of the Appeals Tribunal upon a point of law only.
(3) An appeal pursuant to
subsection (1) shall not operate as a stay of any award, order or decision of a Labour Tribunal or the Appeals Tribunal, or of the effect of any notice, unless the Grand Court so orders.
(4) An application for a stay shall be made by ex parte application.
I asked Mr. Allen if he was aware of any authorities to assist the Court on what the test should be in the granting of a stay of execution under Section 79(3) of the Labour Law. Mr. Allen was unaware of any authorities dealing with this issue and so I am left with applying what I understand the general principals the Court will consider in exercising its discretion as to whether or not a stay should be granted.
I first consider whether or not the appeal has a reasonable prospect of success. I do not examine in detail the merits of the appeal because that would be essentially
hearing an argument on the appeal for the purposes of considering a stay and that is not the function of the Court at this stage. I simply consider whether or not there is a reasonable prospect of success on appeal.
With respect to the first argument advanced by Mr. Allen, I note from the reasons for judgment of the Labour Appeals Tribunal that they concluded as follows:
"The appellant also alleged that the respondents were not recording all the money they collected for work done. The respondents then produced to the Labour Tribunal two receipt books in which they recorded the money collected. These were examined by the tribunal but it does not appear that the appellant either asked for or was given copies of the entries in these books at the time of the hearing. It is the evidence of both parties that these books were kept by the respondents during the
time of their employment. It is not clear what access the appellant had to these books during the term of employment. There is no evidence to suggest that he asked for these books to be returned to him either prior to or upon termination of the employment."
It is a fundamental principal of administrative law that all parties before a tribunal are entitled to receive the benefit of notice of what the issues and the hearing are to be about. In some cases that will require the documents being produced, but in other cases it may not. The law is clear that all parties are entitled to a fair hearing in the accordance with the principals of natural justice, but that does not always mean that all documents must be produced. It often means that documents must be produced in order to provide adequate notice, but, as I have said, that is not necessarily so, it will depend on the facts of each particular case.
On the face of the record in this case, it appears that the appellant did not ask for these books and records at the time of the hearing, or ask for them to be returned upon the termination of the respondents' employment. The appellant did ask for those documents, when the appeal was heard by the Labour Appeals Tribunal. It is therefore not necessarily clear that the plaintiffs will succeed on an appeal on this point.
Secondly, the appellants argue that because the Labour Appeals Tribunal found some errors in the decision below, therefore the whole decision must be set aside and a re-hearing ordered. Mr. Allen referred me to the case of Calvin v. Carr and others, [1979] 2 All ER, at page 440. The passage relied upon by Mr. Allen commences at approximately line 'f' on page 449 and continues over to the following page. The case is summarized accurately in the head note, which states in subparagraph 2,
"There was no absolute rule that defects in natural justice at an original hearing could or could not be cured by appeal proceedings which had been correctly and fairly conducted."
I have considered the reasons for judgment of the Labour Appeals Tribunal, and the errors that it found in the decision below, which errors it corrected. I think Mr. Allen may have an arguable point that the decision below should be set aside in its entirety, but absent some legislative scheme restricting the authority of the Labour Appeals Tribunal, I am not certain of how great that likelihood of success is.
In summary, examining the merits of the case, I am persuaded that Mr. Allen has arguments on both of these grounds, but I am not at the moment persuaded that he has a strong case or a good case on appeal. I am persuaded, however, that it cannot be said that his appeal is frivolous or without merit. It
falls somewhere in between the two. I think it is probably fair to say that the appellant has barely met the test of reasonable prospect of success on appeal.
I turn next to consider the respondents' position. These two employees were awarded certain sums by the Labour Tribunal, which amount was reduced to $1,400 per employee by the Labour Appeals Tribunal. They have had an award in their favour since September of 2002; to date they have not been paid anything on that award.
A primary consideration in these circumstances is that the successful litigant or plaintiff should not be deprived of the fruits of his or her judgment absent good reason for doing so. The appellant has gone through one stage of appeal and is now launching the second. There was no affidavit evidence before me indicating why the respondents should not be paid the amount of the award. In the course of submissions, Mr. Allen suggested that these respondents may
not be in a position to repay any award that they receive. He made that assertion on the premise that these employees washed cars for a living, and when he met them he described them as being the type of people who are living day-to-day. In any event, no affidavit evidence has been filed, and I can see no legitimate reason for depriving the plaintiffs of their award at this time.
In summary, I have found that there are issues on appeal which could not be considered frivolous or without merit, but fall short of being a strong but serious question on appeal. I conclude the appellants, at best, have a reasonable prospect of success. However, I conclude that the most significant factor in exercising my discretion in this case is that the successful party should not be deprived of the benefit of his or her award absent good reason for doing so and there is none present in this case. Even though I have concluded that the appellant has raised an arguable case for appeal, I am not persuaded
that in these circumstances a stay should be granted. Accordingly, the application is dismissed.