A 5-judge panel of the Caribbean Court of Justice (CCJ), sitting for the first time in the Caribbean jurisdiction of Barbados, heard the civil appeal of Maya King, a Belizean banana farm owned by John Zabaneh of Stann Creek, challenging decisions in the lower courts of Belize in which hundreds of thousands of dollars in damages were awarded to six former banana workers, who had allegedly been dismissed way back in 2001 in what the Supreme Court had declared was “undoubtedly union busting.”
Eamon Courtenay, SC, assisted by Ashanti Arthurs-Marin, represented Maya King, the appellant, at the CCJ today; whereas Antoinette Moore, SC, represented the respondents: Jose L. Reyes, Oscar O. Maradiaga, Julio C. Hernandez, Cornelio R. Guiterrez, Emilina B. Rivera and Rigoberto Maldonado.
In the Supreme Court, in July 2009, eight years after the dismissal of the workers, Justice Samuel Awich had awarded each of the respondents $70,000 in compensation, as of the date of his ruling.
The Court of Appeal’s hearing resulted in 2010 in a substantially lower award: Justices Manuel Sosa, Boyd Carey and Dennis Morrison ruled that the award should be reduced from $420,000 to $218,856, payable as follows: Reyes $38,410, Maradiaga $37,280, Hernandez $36,370, Guiterrez $36,786, Rivera $34,290, and Maldonado $35,720, with interest payable at 6% per annum from 10 July 2009 until payment, plus T! of the cost of court.
The CCJ panel, comprised of Justices Jacob Wit, Winston Anderson, Rolston Nelson, Desiree Bernard, and Adrian Saunders, asked Courtenay today: The employees said their dismissal was due to unionism; the company said it was because of financial difficulties. How do you resolve those two positions?
The company has maintained that the workers had been dismissed in cost-cutting measures, because of financial difficulties which the company had been faced with. Courtenay upheld that point.
He also told the CCJ that the lower court, in making its ruling, had in mind a callous employer who quickly destroyed the hopes of his employees, who had in his mind that once the heads of union activism in the banana sector were cut off, there would be no further trade union activity.
“The judge is, in our view, unfairly viewing the appellant,” he told the CCJ panel.
He said that there was a report made in 2004 by the Christian Workers Union (CWU) to The Tripartite Committee which specifically stated that Maya King is fully supportive of the unionization of workers.
Courtenay said that the case ought to have been remitted by the Court of Appeal to another Supreme Court judge, in his respectful submission.
He asked the CCJ judges to consider whether or not the decision of Mr. Justice Awich was arrived at with sufficient regard to the building blocks of the reasoned judicial process, and pointed out that the decision was not well fleshed out.
“Awich’s decision was 15 pages. The COA decision was over 50,” Courtenay noted, adding that what the Court of Appeal attempted to do, in response to their submission on this point, that judgment was not the product of the building blocks of a reasoned judicial process, was to address the deficiencies in Awich’s ruling.
In defense of the respondents, Antoinette Moore said that the former banana workers were fired in close proximity to the admitted union activities. She noted that on May 27, 2001, there was a union rally that had occurred in which many employees signed a form saying they wished to associate themselves with the union. On June 4, 2001, CWU wrote Maya King, the appellant, asking for a meeting to discuss the representation of the 150 workers who had applied for union representation. Days later the workers were fired.
Moore said that the burden is on the employer (Maya King) to show they did not terminate the workers in contravention of the Belize Trade Unions and Employers’ Organizations Act or because of their union activities.
It would be very rare to have a smoking gun case where it is so clearly stated why a worker is terminated when terminated for union activities, as in the case of race and sex discrimination.
The employer uses a pretext, said Moore, and “wouldn’t say outright, ‘I am terminating you for an unlawful reason.’ They tend to be more prudent than that!”
Moore said that what the workers had presented was circumstantial evidence which sets out the prima facie case.
Is there any direct evidence?, Justice Nelson questioned. The judge said, “…this is a case in which the judge [of the Supreme Court] and the Court of Appeal accepted that the company did have a valid reason for dismissal – economic difficulties,” but added that, this is not to say that dismissals can’t exist side-by-side for cost cutting and union activities.
Moore said that she does not believe the workers were dismissed in a layoff exercise; otherwise, they would have been informed beforehand. The dismissals, she said, were effected the same day the workers were informed, and this was only a few days after the union recruitment rally had happened.
Justice Wit noted that Zabaneh had fired 20-odd, and most of them were really citrus workers, and only a few of them banana workers.
Moore added to this that, apart from the banana workers who were awarded damages in the suit against Zabaneh, the others were really terminated because it was the end of the citrus season, but banana is not seasonal.
Justice Saunders said that if 15 more banana workers were fired and they were not in union activities, it would be more difficult to say they were fired for union activities, but he pointed out that Moore had said that only those banana workers fired were involved in union activities. He called that “an eerie coincidence.”
“When you add together piece by piece, it would be very difficult to conclude they were laid off in cost-cutting measures,” Moore said, adding that no evidence had been presented of any wrongdoing by any of the workers in question, nor had they been found to have neglected their duties, because they performed their union work outside their work hours.
Pointing to the Court of Appeal ruling, Justice Nelson said, “This is what Justice Sosa is saying. There is nothing wrong with dismissal for economic reasons but the selection seems to be for union reasons.”
Moore contended that despite the cost-cutting measures, the reason these persons were selected for termination and the reason they were terminated was because of union activities. “The evidence is too plain to think otherwise,” she asserted.
The court then turned to the question of compensation and damages, detailing the finer points of what the former banana workers could actually be entitled to.
They questioned an award for pecuniary damages, as well as an award for hurt feelings endured. They analyzed what would be just.
Justice Wit said that even assuming there are hurt feelings, an award of four times their year’s salary appears a little too much for hurt feelings.
Also referring to the financial difficulties that the company had been faced with, Justice Anderson questioned, “If the award is to be just and equitable, wouldn’t it have to look at the ability of the employer to pay?”
Moore responded that they would have to look at all the circumstances.
She told the court that the respondents agree with the appellant that the delay in the case was very troublesome, but it is not sufficient to set the judgment aside.
“Now, 11 years later, both parties were victims of the delay,” said Moore, asking the court to dismiss Maya King’s appeal, which would preserve the Court of Appeal ruling made last year.
In his wrap up, Courtenay told the court that the laws of Belize, in an amendment to the Labor Act, has dealt with the matter of what is a just and equitable award, and he made copies of law made available to court.
On the question of injury to feelings, he noted that Justice Awich didn’t draw an inference that such an award should be given. “He didn’t make award or even discussed it,” said Courtenay.
At the end of the CCJ session, concluding at 2:00 p.m. Barbados time or 12:00 noon Belize time, Justice Nelson commended the Belize attorneys on the high standard of their submissions to the court, which he said indicates that in the Caribbean, we have counsel of the quality that would equate with those that would appear at the Privy Council.
He also registered his appreciation to the Chief Justice of Barbados for making excellent arrangements to have the CCJ sit in Barbados, and the Registrar of the Court as well as the judges, who have been of great assistance in making their stay easy, convenient and comfortable.
“This is a historic moment and [those of] us who participated in it are greatly touched by the event and we hope that we will be able to return very frequently for my part to have more sittings… in the jurisdictions where we can have the people of the jurisdiction have the opportunity to access us and to access the court,” Nelson added.
Courtenay said that the bar works to “ensure that we prepare with no less diligence than we would for elsewhere,” and added that he looks forward to welcoming the CCJ in Belize for a sitting some day.
The court’s normal venue is Trinidad and Tobago. However, from Monday, April 16, to Thursday, April 19, it sat in Barbados. Among the cases heard was that of a Jamaican woman, Shanique Myrie, 24, who has claimed that she was denied entry to Barbados last March after a female immigration officer sexually assaulted her in what is called a cavity search of her female organ.
The court yesterday granted her special leave to determine the minimum standard of treatment for CARICOM nationals moving within the Caribbean under the Revised Treaty of Chaguaramas/CSME arrangement.