Appeals court finds Cable and Wireless unfairly dismissed its workers

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Cable and Wireless (Antigua and Barbuda) Limited has lost an appeal which sought to overturn an Industrial Court finding that it had unfairly dismissed 13 workers and ought to pay them for doing so.

This was the decision of Justices Gertel Thom, Mario Michel and Sydney Bennett who did not however award costs to either side – in other words, no party was ordered to pay what the other incurred in legal fees.

In the 23-page judgment, the judges agreed that the manner in which the workers were sent packing in December 2015, was not redundancy as Cable and Wireless argued, but it was in fact unfair dismissal.

Leading up to letting the workers go, Cable and Wireless UK was going through a transformation process, after acquiring 100 percent shares in Columbus International Inc whose subsidiary, Kelcom International (Antigua and Barbuda) Ltd provided communication services in the twin island.

Some time later, Cable and Wireless UK reorganised its business in Antigua and Barbuda which involved the closure of Cable and Wireless’ retail business. 

According to the judges’ records, the retail business was thereafter carried on by Kelcom.

On November 23, 2015, Cable and Wireless notified the 13 retail department workers that they would be made redundant effective within seven days and sought to pay them severance.

However, on November 27, the Antigua and Barbuda Workers Union (ABWU) sought and was granted an injunction restraining Cable and Wireless from dismissing the employees. This injunction was granted without the presence of the company which eventually had a say on December 15, 2015.

Nonetheless, the injunction remained in place for some time.

Soon after getting the injunction, the ABWU filed a memorandum in the Industrial Court seeking the reinstatement or reemployment and alternatively, compensation for unfair dismissal.

The judges summarised the evidence stating that in its memorandum, the union contended that “Cable and Wireless’ letter of 23rd November 2015 constituted unfair dismissal of the employees, as Cable and Wireless’ reorganisation of its business at the behest of Cable and Wireless UK did not constitute redundancy within the meaning of section C3 of the Antigua and Barbuda Labour Code (“the Labour Code”), nor does its action satisfy the statutory test of reasonableness outlined in section C58(2) of the Code.”

Later, the Industrial Court ruled “in the circumstances, Cable and Wireless failed to prove, on a balance of probabilities, that it acted reasonably. Accordingly, the employees were unfairly dismissed and entitled to compensation and costs.”

Cable and Wireless mounted an appeal asking the court to determine “(i) whether an employer is required to prove that it acted reasonably within the meaning of section C58(2) of the Labour Code in dismissing an employee for redundancy; and (ii) if the employer was required to prove reasonableness, whether the Industrial Court erred in finding that the employer acted unreasonably in dismissing the employees.”

The appellate court has now dismissed that appeal and ordered the workers be paid for unfair dismissal. At the same time, it took into consideration the salaries that were paid after the workers’ dismissal while the injunction remained in effect.

With regards to that, the appellate court ruled, “that the salaries paid to the employees from 1st December 2015 until 24th May 2016 be treated as part payment of the compensation awarded by the Industrial Court;

and making no order as to costs.”

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