Blackburn v LIAT (1974) Ltd

JurisdictionUK Non-devolved
JudgeSir Rupert Jackson
Judgment Date16 March 2020
Neutral Citation[2020] UKPC 9
CourtPrivy Council
Docket NumberPrivy Council Appeal No 0037 of 2019
Date16 March 2020

[2020] UKPC 9

Hilary Term

From the Court of Appeal of the Eastern Caribbean Supreme Court

before

Lord Kerr

Lord Wilson

Lady Black

Lady Arden

Sir Rupert Jackson

Privy Council Appeal No 0037 of 2019

Blackburn
(Respondent)
and
LIAT (1974) Ltd
(Appellant) (Antigua and Barbuda)

Appellant

Douglas L Mendes SC

Imran Ali

(Instructed by Simons Muirhead & Burton LLP)

Respondent

Ruggles Ferguson

Septimus Rhudd

Amy Bullock

(Instructed by Blake Morgan LLP)

Heard on 18 February 2020

Sir Rupert Jackson
1

This opinion is in eight parts, namely:

Part 1. Introduction

Part 2. The Facts

Part 3. The Present Proceedings

Part 4. The Appeal to the Court of Appeal

Part 5. The Appeal to the Privy Council

Part 6. Can the Finding of Unfair Dismissal Stand?

Part 7. Should the Finding of 65% Contribution be Reinstated?

Part 8. Conclusion

Part 1: Introduction
2

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.

3

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”.

4

In this judgment the Board will use the following abbreviations:

EPA” means Employment Protection (Consolidation) Act 1978.

ERA” means Employment Rights Act 1996.

“ICA” means the Industrial Court Act of Antigua and Barbuda.

“Labour Code” means the Antigua and Barbuda Labour Code.

“LIALPA” means the Leeward Islands Airline Pilots Association

“TTIRA” means Trinidad and Tobago Industrial Relations Act.

5

The Labour Code includes the following provisions:

“C9(1) An employer may, without advance notice, terminate the employment of any person who has engaged in misconduct related to his work within the limitations of section C59( 1) or (2).

C56 Every employee whose probationary period with an employer has ended shall have the right not to be unfairly dismissed by his employer; and no employer shall dismiss any such employee without just cause.

C58(1) A dismissal shall not be unfair if the reason assigned by the employer therefor —

  • (a) relates to misconduct of the employee on the job, within the limitations of section C59(1) and (2) …

Provided, however, that there is a factual basis for the assigned reason.

(2) The test, generally, for deciding whether or not a dismissal was unfair is whether or not, under the circumstances, the employer acted unreasonably or reasonably but, even though he acted reasonably, if he is mistaken as to the factual basis for the dismissal, the reasonableness of the dismissal shall be no defence, and the test shall be whether the actual circumstances which existed, if known to the employer, would have reasonably led to the employee's dismissal.

C59(1) An employer may terminate the employment of an employee where the employee has been guilty of misconduct in or 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 to clearly demonstrate that the employment relationship cannot reasonably be expected to continue; …”

6

The ICA includes the following provisions:

“9(1) In the hearing and determination of any matter before it, the court may act without regard to technicalities and legal form and shall not be bound to follow the rules of evidence stipulated in the Evidence Act, but the court may inform itself on any matter in such manner as it thinks just and may take into account opinion evidence and such facts as it considers relevant and material, but in any such case the parties to the proceedings shall be given the opportunity, if they so desire, of adducing evidence in regard thereto.

10(3) Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall —

  • (a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole;

  • (b) act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations and, in particular, the Antigua and Barbuda Labour Code.

(6) The opinion of the court as to whether an employee has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice and any order for compensation or damages including the assessment thereof made pursuant to subsection (5) shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any account whatever.

17(1) Subject to this Act, any party to a matter before the Court shall be entitled as of right to appeal to the Court of Appeal on any of the following grounds, but no others —

(d) that any finding or decision of the court in any matter is erroneous in point of law;

(3) The Court of Appeal may in any matter brought on appeal before it, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred although it is of the opinion that any point raised in the appeal might have been decided in favour of the appellant.”

7

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

Part 2: The Facts
8

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.

9

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

  • “(a) Any adverse report on a Pilot shall be brought to the attention of the Pilot concerned and if such report is made in writing, the Pilot shall be invited to make his comments in writing …

  • (b) In the event that, as a result of an adverse report, the Company contemplates disciplinary action, then the Pilot concerned must be given an opportunity to exculpate himself in writing before Disciplinary Action is taken by the Company.”

10

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.

11

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

“On 6 and 20 November you were broadcast on Observer Radio's Big Issues Programme. You were highly critical of the company's actions and policies. We are particularly concerned about your statements made about the quality of the airline's safety and members of senior management, some of which, we have been advised, may be defamatory.

Some of the inappropriate statements made by you during these broadcasts are reproduced below and the company reserves the right to rely on and produce the entire broadcasts in any subsequent legal proceedings.

On 6 November on the said radio programme you stated, inter alia:

There is a confrontational group within LIAT, an unqualified confrontational group, even within Personnel, even within HR. I know there is conflict because, Ms Ramsey doesn't, I don't believe she's an educated person.

There are management people in my department who have absolutely no qualifications in aviation. There is not one single person in my management that is qualified to make the decisions they are making. Management includes such posts as a Manager of Catering where LIAT has no catering.

Further on 20 November on the said radio programme you stated, inter alia:

Let me put it to you now as a professional pilot … I am one of the most senior pilots … LIAT right now is not as safe as it was when we had two … and I am talking … I represent the training Captains … I am the sole spokesman of all the pilots … The standards of safety and operations that we have now are not better and if anything, are less than we had when Captain Murray and Captain Lake alone were running the flight operations department.

Your statements have crossed the line beyond what is permitted of a union leader and a senior employee of LIAT. We have been advised the statements amount to misconduct as defined by the Labour Code of Antigua and Barbuda. In that regard:

The statements made about Miss Ramsey were very derogatory and would tend to undermine corporate and public confidence in her competence to manage the Human Resources Department of LIAT and would tend to subject her and in particular her professional reputation to opprobrium and disrepute;

The statements made about ‘management’ would tend to undermine corporate and public confidence in the competence of the flight operations department;

The statement concerning catering is wholly untrue. The Manager of In-flight services and catering has direct responsibility for all Cabin crews. Further, you are aware that the company offers refreshments to passengers on early morning and late night flights, and to pilots throughout their flight rotation;

The statements about the airline's safety made on 20 November would tend to undermine public confidence in the safety of LIAT.

Your employment is accordingly terminated, with immediate effect. The...

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