Cable & Wireless (West Indies) Limited v Conrad Tonge (deceased) et al, represented by The Antigua and Barbuda Workers' Union (Antigua and Barbuda)

An industrial tribunal exercising a statutory power to make a fair and just award has a wide discretion. It must consider the interests of the persons concerned and the community, equity, good conscience, the substantial merits, good industrial-relations principles and the statutory code. A payment above the statutory minimum does not require the tribunal to uphold the employer’s formula unless the employees prove it unfair. Negotiated agreements with other employers may be relevant evidence, although they do not establish a binding industry rule. Appellate intervention is justified only for a wrong principle, irrelevant or omitted considerations, or a plainly wrong decision.

The appellant employer appealed from the majority decision of the Court of Appeal of the Eastern Caribbean Supreme Court, which had upheld an award by the Industrial Court of Antigua and Barbuda. The award increased severance payments for redundant employees according to length of service. The employer had paid four weeks’ pay for each year of service, above the statutory minimum, but negotiations had not produced an agreed formula. The central issue was whether the Industrial Court had properly exercised its discretion under the Industrial Court Act and whether appellate intervention was warranted.

Disposition. Lord Collins delivered the judgment of the Board. The appeal was dismissed.

1. The Industrial Court Act, section 10(3), required the Industrial Court to make an award that was fair and just, having regard to the interests of the employer, employees and the community as a whole. It also required consideration of equity, good conscience, the substantial merits of the dispute, good industrial-relations principles and, in particular, the Antigua and Barbuda Labour Code. The provision conferred a wide discretion.
2. The Code provisions on severance established minimum standards. The fact that the employer’s formula exceeded the statutory minimum did not determine whether it was fair and just. There was no rule requiring the Industrial Court to uphold that formula unless the employees first proved it unfair.
3. The Industrial Court was entitled to consider negotiated collective agreements with other employers. Those agreements did not establish a binding rule for severance payments, but they could provide relevant evidence of prevailing practice and inform the assessment required by section 10(3).
4. Appellate review of the discretionary award was limited. Intervention required proof that the Industrial Court applied a wrong principle, took account of an irrelevant matter, failed to take account of a relevant matter, or was plainly wrong.
5. Although the Industrial Court’s reasoning was sparse, the criticisms did not establish any such error. It had applied the statutory criteria and acted within its discretion. The Board therefore advised that the appeal be dismissed.

1. Privy Council: The appeal was dismissed. [2010] UKPC 25
2. Court of Appeal of the Eastern Caribbean Supreme Court: The majority dismissed the employer’s appeal from the Industrial Court’s award; Edwards AJA dissented.
3. Industrial Court of Antigua and Barbuda: The court awarded severance according to a graduated formula based on length of service.