Blackburn v LIAT (1974) Ltd

Unfair dismissal under the Antigua and Barbuda Labour Code is determined by whether the employer acted reasonably in the circumstances. Procedural fairness forms part of that assessment. A procedural failure makes dismissal unfair where a fair procedure could have affected the decision, subject to the exceptional no-difference case.

The Industrial Court Act of Antigua and Barbuda permits the Industrial Court to obtain relevant evidence after trial, provided the parties have an opportunity to respond. An appellate court may uphold the result where the correct legal test would produce the same outcome and no substantial miscarriage of justice occurred.

LIAT dismissed Humphrey Michael Blackburn, a senior pilot and union chairman, summarily after radio broadcasts criticising the company’s management and safety. The Industrial Court held by a majority that the dismissal was unfair, but reduced compensation by 65% for his contribution. The Court of Appeal upheld the unfair-dismissal finding but quashed the contribution assessment because the Industrial Court had obtained and relied on transcripts and recordings after trial.

LIAT appealed to the Privy Council, challenging the legal test applied to unfair dismissal and seeking reinstatement of the contribution finding. The central questions were whether the lower courts had applied the correct reasonableness and procedural-fairness principles, and whether the Industrial Court could obtain further evidence after trial under its statutory powers.

The appeal was allowed in part. LIAT’s appeal against the finding of unfair dismissal was dismissed, while its appeal against the setting aside of the 65% contribution assessment was allowed.

1. Unfair dismissal. The Board accepted that general principles from United Kingdom unfair-dismissal authorities were relevant, while emphasising differences between the Caribbean legislation and its United Kingdom counterparts. Under section C58(2) of the Antigua and Barbuda Labour Code, the controlling question was whether LIAT acted reasonably or unreasonably in the circumstances. The principles in Polkey v A E Dayton Services Ltd [1988] AC 344 and Whitbread plc v Hall [2001] ICR 699 applied to both substantive and procedural aspects of dismissal.
2. The Industrial Court had not precisely stated the applicable test. Nevertheless, its reasoning made clear how the correct test would have been applied. Section 10(6) of the Industrial Court Act of Antigua and Barbuda gave special status to matters actually decided by the Industrial Court, but did not eliminate the appellate power in section 17(3) to dismiss an appeal where no substantial miscarriage of justice had occurred. No useful purpose would have been served by remitting the matter, and the finding of unfair dismissal stood.
3. The Industrial Court had found that LIAT breached the collective agreement by failing to give Mr Blackburn an opportunity to exculpate himself. Given his long service, union position, the available explanations and the timing of the dismissal, a fair procedure could have affected the decision. The dismissal was therefore unreasonable and unfair.
4. Further evidence. Section 9(1) of the Industrial Court Act of Antigua and Barbuda was broad enough to permit the Industrial Court to obtain relevant and material evidence after trial and before judgment. The provision operated as a safety valve, subject to the requirement that parties be given an opportunity to adduce evidence in response. The Court of Appeal’s contrary statement of law was erroneous.
5. As a matter of good practice, the Industrial Court should expressly draw attention to the parties’ statutory right to respond when obtaining post-trial evidence. In this case, correspondence invited Mr Blackburn’s comments, his attorneys could have requested a further hearing or made submissions, and they did neither. The statutory requirement was satisfied. The 65% contribution assessment was accordingly reinstated. Costs submissions were invited within 21 days.

1. Privy Council. On 16 March 2020, the Board allowed LIAT’s appeal concerning the contribution assessment but dismissed its appeal concerning unfair dismissal: [2020] UKPC 9.
2. Court of Appeal of the Eastern Caribbean Supreme Court. On 20 September 2018, the court upheld the finding of unfair dismissal, allowed Mr Blackburn’s appeal on contribution, quashed the 65% assessment and remitted that issue to the Industrial Court. No citation is stated in the judgment.
3. Industrial Court of Antigua and Barbuda. On 13 June 2017, by a majority of three to one, the court found the dismissal unfair and reduced compensation by 65% for Mr Blackburn’s contribution.