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TRINIDAD AND TOBAGO TRADE DISPUTE NO. 476 OF 2006

IN THE INDUSTRIAL COURT

Between

BANKING, INSURANCE AND GENERAL WORKERS UNION - Party No. 1

And

NATIONAL CANNERS LIMITED -Party No. 2

CORAM:

His Honour Mr. Ramchand Lutchmedial - Chairman His Honour Mr. Gregory Rousseau - Member Her Honour Mrs. Yvette Simon - Member

APPEARANCES:

Mr. D. Ali ) Attorney-at-law )- for Party No. 1

Mr. P. Cezair ) Industrial Relations Consultant ) - for Party No. 2

Dated: 18th February, 2010

JUDGMENT

Delivered by Her Honour Mrs. Yvette Simon

This trade dispute was reported by the Banking, Insurance

and General Workers Union (hereinafter referred to as “the

Union”) to the Honourable Minister of Labour and Small and Micro

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Enterprise Development and thereafter referred to the Industrial

Court. In the Certificate of Unresolved Dispute dated 26th October,

2006 (hereinafter referred to as “the Certificate of Unresolved

Dispute”) the Union reported that the dispute “concerns the

termination of the services on February 22, 2005, of Adesh

Birbal” by National Canners Limited, (hereinafter referred to as

“the Company”).

SUMMARY OF EVIDENCE

The Court had before it, written statements of Evidence and

Arguments filed on behalf of the Union and the Company

respectively. In addition, the Union called one (1) witness namely,

Adesh Birbal (hereinafter referred to as “the Worker”) while the

Company called four (4) witnesses namely, Ms. Nicole Matouk, Mr.

Hamlin Alexis, Ms. Patricia Nunes and Mr. Afzal Rahamut. The

Court, pursuant to Section 8(2) of the Industrial Relations Act,

Chapter 88:01 (hereinafter referred to as the I.R.A.), of its own

motion, summoned Mr. Jeremy Matouk, a joint Managing Director

of the Company, to give evidence.

EVIDENCE BY THE UNION Mr. Adesh Birbal (The Worker)

In his examination-in-chief the Worker testified that he was

first employed by the Company as an Information Technology

(hereinafter referred to as “I.T.”) Manager, for a period of six

months with effect from 27th January, 2003. Thereafter, he

accepted permanent employment, offered to him by letter dated 2nd

September, 2003, effective 26th August, 2003. In the said letter he

was informed, inter alia, that he was “responsible to the

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Managing Director – Finance”, Ms. Nicole Matouk (hereinafter

referred to as “Ms. Matouk”), for the performance of his duties and

that his “contract is terminable by one (1) month’s notice by

either party”. Ms. Matouk was one of two joint Managing Directors

of the Company.

The said letter dated 2nd September, 2003, was tendered

into evidence and marked “AB 2”.

On Wednesday 8th December, 2004 at the request of Mr.

Jeremie Matouk, the other joint Managing Director, (hereinafter

referred to as “Mr. J. Matouk”), he assisted him in viewing the

data of the “Check Register Programme”. That same evening he

informed Ms. Matouk of the assistance he had given Mr. J. Matouk.

On Thursday 9th December, 2004, Ms. Matouk told him

“specifically and directly and firmly to remove his [Mr. J.

Matouk’s] access rights” to the programme “under the

purview of a security review to avoid conflicts”. He indicated to

her that that would cause “World War III within the Company.”

On Friday 10th December, 2004 when he informed Ms.

Matouk that he had revoked Mr. J. Matouk’s rights in “a particular

piecemeal fashion”, giving him “read only access”, she

responded that she expected it to be removed and that failure to do

so would result in repercussions for him (the Worker). He therefore

acted upon her instructions.

On Monday 13th December, 2004 when Mr. J. Matouk told

him that there was an access denied message with the programme,

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he explained to him that the problem arose because his supervisor,

Ms. Matouk, requested him to remove his access rights.

According to the Worker, he “caved into pressures” from Ms.

Matouk and was forced to issue the following memorandum to her,

dated 30th December,2004, which was tendered into evidence and

marked (“A B 5”) The memorandum read in part as follows:

“I wish to recount that I recently did an overview of the security rights of various members of the organization and found that certain rights inherited from the past may have been inappropriately granted. As I am not the final authority in these matters, I pointed out these areas to you and you instructed that certain changes were to be made. This instruction was promptly put into effect while other minor security rights adjustments are still being addressed.”

He was ill on Thursday 17th February 2005 and Friday 18th

February, 2005. On the said Friday he received a call from the

former Financial Controller, Mr. Declan Pattron, and based on what

Mr. Pattron expressed to him, he became intimidated. He also

learnt that he was being fired. He then visited the office in the

afternoon of the said Friday with a letter he had drafted and was

“intercepted” by Mr. Alexis, the Corporate Secretary, who invited

him to his office and requested from him the keys to his (the

Worker’s) office and the Company’s property in his possession. He

complied with Mr. Alexis’s request .He then gave Mr. Alexis a

resignation letter, dated 18th February, 2005, addressed to Ms.

Nicole Matouk, Managing Director, Finance (“A B 3”), as he did not

want the “stigma” of being fired attached to him. The text of the

said letter is reproduced hereunder:

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“Dear Madam, Resignation of Mr. Adesh M. C. Birbal I hereby tender my resignation from my position as IT Manager (effective date May 18th, 2005). I am grateful for the wonderful exposure and symbiotic experiences that I have gained during my stay. I wish to thank you for the opportunity to serve as IT Manager and I truly thank you for your wonderful and glowing comments about me in our conversations. As one would know, in 2002, I had resigned from NCL, having been IT Administrator since September, 2001. then after a brief stay in Canada, I returned to Trinidad. Afterwards, based on your recommendation I was offered employment in the current portfolio. Now after some two years, I have decided to resign once again. I wish to state however, that my decision was based on the dilemma that I was placed in and all the untruths and pressures that were leveled against me in following your orders. The directorship of NCL is embroiled in an internal continual battle. This is a fact, and during one of these battles I was asked by you, to remove certain access rights of mr. J. Matouk (one of NCL’s Directors). After resisting in an effort to do the right thing, I was pressured by you to execute the order. My peers and almost all of the employees of National Canners Limited (on both sides of the ‘divide’) have told me that removing Mr. J. Matouk’s access rights is not the correct thing to do. My conscience, together with interpretations of the company’s by-laws also tell me the same: any director must have access to relevant data of his/her company. Furthermore, due the fact that I was very fearful for my job, I was forced to write a memo stating that I had agreed with your instructions. At this point I have to say that this was done under great duress and I did so under protest, and did so to avoid dismissal. Then after giving you the memo you squarely placed the blame of the entire situation on me in the recent executive meetings.

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This is a fact and the truth of this had to be revealed, as I will not allow myself to be the proverbial scapegoat in this issue. It was your decision and that is an inescapable fact. I am quite hurt and saddened that I was betrayed in such a manner. I would have preferred not to resign, and that you were truthful to me. Please do not tarnish my good name. I would have also preferred to not say these things now, because in revealing the truth it will incur your wrath. It is a difficult thing for me to accept that I was being betrayed and it is with sorrow that I am forced to depart. I have no issues with Mr. Michael Matouk as he was always kind and straightforward with me. I trust that he understands the truths being revealed in this letter. Despite all of the confusion, I have decided to place my effective date at May, 18th, 2005, so that I can complete the Microsoft Great Plains project that I have started . I do this also so it can be said that I did not abandon the project midstream. Having said all of the above I still wish to extend my heartfelt best wishes and continued success to National Canners Limited as a whole, and trust that the conflicts will be resolved.”

On 21st February, 2005 when he reported for work he found

his office locked and he asked Mr. Alexis whether he would be

allowed entry into his (the Worker’s ) office to work on the project.

Mr. Alexis advised him to speak with Ms. Matouk as he was

instructed to tell him – “no”.

In response to his letter of resignation he received a letter

dated 22nd February, 2005, (“A.B.4 “) signed by Mr. M. Matouk, ,a

Managing Director, for Ms. Matouk, Managing Director, which read

in part as follows:

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“In view of certain statements expressed in the said letter, which we deny, we have concluded that it would be untenable for you to remain in our employ until the date of May 18, 2005 proposed by you as the effective date of your resignation. We therefore wish to inform you that it has been decided that you leave immediately. You will be paid one (1) month’s pay in lieu of notice.”

The cost of airfare, he said, so far, to attend Court was

approximately one thousand seven hundred and fifty dollars

($1,750.00) (Canadian), with total loss of earnings at one thousand

seven hundred and forty dollars ($1,740.00) (Canadian).

Under cross-examination he stated that:

Ms. Matouk did not tell him to resign, instead he made the

decision;

Mr. J. Matouk however told him that he could resign now

with his “reputation intact”, or resign later with his

“reputation in tatters”;

Mr. J. Matouk could not fire him because he was not

supervised by him, but Ms. Matouk was the one who could

fire him since the responsibility for the I.T. systems resided

with her.

He decided to resign based on the dilemma in which he was

placed, arising out of the instruction given to him by Ms. Matouk to

take away Mr. J. Matouk’s rights and privileges, which he did.

These rights were in respect of access to certain financial

information about the Company’s affairs. When Mr. J. Matouk

sought his opinion on the removal of the access rights, he replied

that in his “humble, private opinion” he should continue to have

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the rights He was of the view that the removal of the rights was to

spite Mr. J. Matouk, as part of the ongoing feud.

His resignation was forced, since as I.T. Manager he did his

job very well but everyone had their own agenda in management

and they were using him as “political fodder”. An ex-employee

informed him that he was going to be dismissed. He “wrote that

resignation letter hoping that it was not ever going to be used.

[He] went to National Canners that day to hope against all

hope that this was not happening. That was [his] hope. That is

why [he] made sure to ask Mr. Alexis what were [his]

instructions? What was told to [him]? And when he told [him]

what was happening, that is when [his] worse fear was

confirmed”

EVIDENCE BY THE COMPANY

Ms. Nicole Matouk (Joint Managing Director)

Ms. Matouk in her examination-in chief testified that she is

a joint Managing Director ofthe Company. The sections for which

she is responsible include: Finance and I.T. The other joint

Managing Director, Mr. J. Matouk, is responsible for inter alia

Production – Engineering and Research.

All persons employed in her section report to her and she is

the only person who could dismiss an employee in her section. In

the case of the Worker he reported to her and was required to obey

her instructions.

Sometime around Friday 10th December, 2004, while she

was on vacation leave, the Worker called her and informed her that

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Mr. J. Matouk had some access rights to I.T. information which

were inappropriate and something should be done about the

matter. She then advised him that she would accept his

recommendation to have it changed but that he should undertake

an overview of the entire system since there may be other

employees who also have inappropriate rights. Consequently, the

Worker made modifications to the system. Arising out of the

modifications, and agreed to by her, Mr. J. Matouk had a problem.

On the 28th December, 2004 M J. Matouk wrote a letter to

Mr. Alexis, the Company Secretary, copied to the shareholders,

indicating that the Worker had told him he had found that the

removal of his access rights was “immoral, illegal and he did not

agree with it”. According to Mr. J. Matouk because the Worker

failed to restore his access, he had lost all confidence in him and

considered him as a security risk.

Based on that letter she advised the Worker to make his

view (which had been expressed to her repeatedly) known in

writing, i.e. that he supported everything that was done. He then

willingly wrote a memorandum to that effect.

In January, 2005 she wrote a letter to the Board of Directors

to rebut what Mr. J. Matouk said in his letter of 28th December,

2004 in order to protect the Worker.

The Worker proceeded on all outstanding vacation leave in

the month of January, 2005 and around that time he mentioned that

he was considering migrating to Canada. He requested, and she

did prepare, a recommendation in order that he could gain

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employment in Canada, since he told her that he was leaving the

Company on the “18th”.

After the expiration of the Worker’s vacation leave he

requested, and was granted two weeks no-pay leave, and he was

expected to meet with her either Wednesday the 16th February,

2005 or Thursday 17th February, 2005 to effect a hand-over of his

duties. On the said Wednesday she was unable to contact him and

he did not attend work on the said Thursday. At the end of the

workday on Friday the 18th February, 2004 she was surprised to

see his resignation letter on her desk.

Because she had planned to travel on the weekend, she met

with Mr. Alexis and Mr. M. Matouk, and having noted the contents

of the Worker’s resignation letter, which she considered quite

serious and inaccurate, she told them to accept the letter of

resignation and pay him one month’s salary.

At no time did she give any instructions denying the Worker

entry into the premises and his office.

Under cross-examination Ms. Matouk denied that she gave

the Worker instructions to remove Mr. J. Matouk’s access rights

saying that she was “on holiday, without a remote link, without

any knowledge how to get into the system or even assess

what rights anybody has.” It was the Worker who informed her

that he had discovered that Mr. J. Matouk had inappropriate rights

which required changing and she “sanctioned” the Worker’s

recommendation to make the necessary changes. .

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When she enquired from the Worker whether her

instructions were carried out, he responded in the affirmative,

adding that “There were no issues. It was peaceful.” She denied

that the Worker informed her that he did not fully carry out her

instructions.

By playing one Director against another, the Worker

eventually got caught, and with such a resignation letter he could

not have stayed.

In response to questions from the Court she stated that on

the 17th February, 2005 both Mr. J. Matouk and herself discussed

at a Board meeting the Worker’s intimation that he was leaving the

Company on the 18th February, 2005 to go to Canada. Instead, she

received a resignation letter which stated that his effective date of

resignation would be “May”.

Mr. Hamlin Alexis (Company Secretary)

In his examination-in-chief Mr. Alexis testified that around

3:00 p.m. on Friday 18th February, 2005 the Worker came to his

office and submitted a letter of resignation, which he read and then

arranged for a copy to be sent to the Worker’s Head of Department,

Ms. Matouk. The Worker did not attend work the day prior to 18 th

February, 2005.

He denied that the handing over of the Company’s keys and

the Worker’s inability to access his office took place on Friday 18th

February, 2005.

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On Monday 21st February, 2005 Mr. M. Matouk instructed

him, on behalf of Ms. Matouk, to receive from the Worker the keys,

the Company’s documents and any other items he may have had in

his possession and to deny the Worker access to the computer

room. His understanding was that the Worker had resigned and

having regard to his position, as I.T. Manager, it was necessary for

the Company to safeguard its information.

He had no authority to give any instructions to the Worker,

unless instructed by the Board or Ms. Matouk and likewise Mr. J.

Matouk had no authority to issue instructions to employees who

reported to Ms. Matouk since the Company is not structured in that

way.

Ms. Patricia`Nunes (Secretary to Ms. Matouk)

Ms. Nunes in her examination-in-chief testified that prior to

the 21st January, 2005 the Worker informed her that he was

migrating to Canada and that he required a letter of

recommendation, which was prepared by Ms. Matouk and which

she (Ms. Nunes) typed.

Mr. Afzal Rahamut (Administrative Director)

Mr. Rahamut. in his examination-in-chief referred to his

Witness Statement tendered into evidence and marked “AR” which

stated, inter alia, that at no time did the Worker ever indicate to him

that Ms. Matouk was pressuring him to do things against his will.

The Worker had informed him on several occasions that he

intended to return to Canada and had undertaken to get the Great

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Plains Software up and running but was unable to handle the

politics any longer.

Under cross-examination Mr. Rahamut explained that he

was present at a meeting with the Worker and Ms. Matouk, when

the Worker stated that he volunteered to remove Mr J. Matouk’s

access rights because he did not think Mr. J. Matouk should have

it. In response, Ms. Matouk requested the Worker to document

what transpired and the Worker agreed to do so.

Mr. Jeremy Matouk (Joint Managing Director)

The Court in accordance with Section 8 (2) of the I.R.A., of

its own motion, summoned Mr. J. Matouk to give evidence. He

testified that Ms. Matouk is essentially in charge of finance,

purchasing and information technology while he, as joint Managing

Director, is in charge of operations, marketing, industrial relations,

security and export.

I.T., he said, was under Ms. Matouk’s portfolio and he could

not dismiss the Worker, as it would require the attention of Ms.

Matouk.

In investigating the Company’s I.T. system he discovered

that his access had been cut off. He then contacted the Worker

who advised him that Ms. Matouk had instructed him to cut off his

access. In response, he informed the Worker that this was illegal

and that he was under no obligation to obey an illegal instruction. At

a Board of Directors meeting Ms. Matouk, stated that it was the

Worker’s idea to conduct a review and to make certain adjustments

to the access of information.

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He did not believe that the Worker acted on his own initiative

in denying him access, but that he responded to Ms. Matouk’s

instruction. However, he told the Worker that he could restore his

access and if it meant resigning he would be able to do so with his

integrity intact.

In response to questions from Counsel for the Union Mr.

J. Matouk denied that the Worker had no option but to resign.

Instead, the Worker should “have restored the access and

unless the instructions were given in writing, he could stand

and wait. He didn’t have to resign. He could have run the risk

of being dismissed wrongfully.”

SUMMARY OF WRITTEN SUBMISSIONS

THE UNION

The Union submitted that at the time the Company

terminated the Worker’s services, he had been employed at the

Company for approximately two years with an unblemished record.

The Worker was instructed by Ms. Matouk to do a task which

impacted adversely on Mr. J. Matouk, in so far, as Mr. J. Matouk

was unable to access financial information from his computer

system. From the inception of the instruction, the Worker found

himself being questioned and/or pressured and/or bullied by Ms.

Matouk and Mr. J. Matouk and that he had no choice but to tender

his resignation in all the circumstances.

The Worker was a victim of an obvious adversarial

relationship between the joint Managing Directors which ultimately

cost him his job.

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The termination of the Worker’s services was harsh and

oppressive, unreasonable and unjust and not in accordance with

the principles of good industrial relations practice.

Whether the Worker’s submission of a resignation “clothes

his termination with the robe of a constructive dismissal,

which should somehow operate to prohibit the prosecution of

this Trade Dispute or result in its failure, (because of the terms

of the unresolved certificate issued by the Honourable Minister

of Labour and Small and Micro Enterprise Development) is

purely academic.” The answer to this question “is to include in

any interpretation of the meaning of the word “termination”,

the circumstances in which Adesh Birbal has come to be no longer

employed by the Company. In doing so, this Honourable Court

would have adopted a broad approach of common sense and

common fairness, eschewing all legal or other technicality”.

The Union cited the following cases in support of the

remedies which the Union felt the Worker was entitled to:

Hill V C.A. Parsons & Co. Ltd.1 - the payment of compensation or

damages.

Additionally such payment or compensation should include

all gratuities, benefits, perquisites and the like that would have been

earned from the date of termination to such date as the Court thinks

fit.

The Union further submitted that there should be an award

of exemplary and/or aggravated damages in accordance with the

1 [1972] 1 Ch. 305, per Sachs L.J. at page 321.

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principles laid down in Rookes v Bernard2, referring in particular to

Lord Devlin’s statement about “a big man bullying a small man”.

The Union also sought a refund of all expenses incurred by

the Worker in travelling from Canada to Trinidad to attend the

hearing of this dispute, costs, interest thereon at the rate of 12%

per annum or alternatively at such rate and for such period as the

Court deems just and/or other relief.

THE COMPANY

The Company submitted that the Court was required to determine

the matter on the following two issues only:

1. whether the Minister’s referral to the Court was in respect of

a constructive dismissal of the Worker; or

2. whether the Worker was denied the three months notice

which was requested by him in his letter of resignation.

The Minister’s Certificate of Unresolved Dispute recorded

the dispute as reported by the Union as “the termination of the

services on February 22, 2005, of Adesh Birbal”. The Company

therefore, concluded that an issue of constructive dismissal was not

raised by the Union to the Ministry and as such is therefore null and

void before the Court.

The Company was within its legal right to accept the

Worker’s letter of resignation by paying to the Worker one month’s

pay in lieu of notice and reject the Worker’s request for an

extension of three months.

2 [1964] AC 1129 HL,

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With respect to the contention that he only tendered his

resignation letter after he was locked out on the 18th, this could not

be so since he did not attend work on the said day. He submitted

his resignation letter to Mr. Alexis sometime around 3.50 p.m. on

the 18th and the hand-over of duties took place on the 21st after the

Company received his letter of resignation.

The Worker informed Mesdames. Matouk and Nunes and

Mr. Rahamut that he intended to resign to go to Canada and Ms.

Matouk even prepared a letter of recommendation for him.

It does not really matter whether Ms. Matouk gave him the

instruction on his recommendation or otherwise, as it would be a

lawful instruction, once it does not affect a worker’s security or

safety. It was decided in Western Excavation (ECC) v Sharp 3

that lawful conduct by the employer is not capable of constituting a

repudiation of the contract of employment no matter how unwise or

unreasonable it may be in industrial relations terms and there is no

credible evidence tendered to support any alleged breach of

contract by the Company or to indicate any broken term important

or fundamental enough to amount to a repudiation. The Worker

was under the direct supervision and instruction of Ms. Matouk and

could only be disciplined by her in accordance with the letter of

employment and as stated by Mr. J. Matouk in his evidence.

Assuming, but not admitting, there was a breach, even a

fundamental breach with respect to the two incidents namely, that

the Worker was forced to remove Mr. J. Matouk’s access and

forced to write a letter acknowledging same, the Worker by not

having resigned immediately could not rely on the doctrine of

constructive dismissal.

3 [1978] IRLR 27, CA (and re-affirmed by the Court of Appeal in Spafax Ltd. v Harrison [1980] IRLR 442, Ca)

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The Court must therefore consider whether during the period

(Friday 18th February, 2005 and May, 2005) the Worker’s conduct

was such as to constitute an affirmation of his contract.

The Company’s response to his letter of resignation cannot

be interpreted as a letter of dismissal since it is in response to and

after the fact of his resignation. The Company’s response refers to

payment in lieu of notice and merely indicates that no useful

purpose will be served if he stayed on during the period of notice.

Under such untenable conditions the Worker obviously could not be

allowed to continue.

ISSUES FOR DETERMINATION

The issues for determination are:

i. Whether the issue of constructive dismissal could be

considered by the Court, in light of the wording of the

Certificate of Unresolved Dispute; if so

ii. Whether the Worker was constructively dismissed; and if not

iii. Whether the Company was entitled to pay the Worker one

month’s pay in lieu of notice, consequent upon his letter of

resignation.

ANALYSIS

Whether the issue of constructive dismissal could be

considered by the Court

At the outset the Court must point out that it is mindful that

the Certificate of Unresolved Dispute stated that the dispute, as

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reported by the Union, “concerns the termination of the services

on February 22, 2005, of Adesh Birbal”. However, in keeping

with section 9.(1) of the I. R.A. the Court “may act without regard

to technicalities and legal form …….. 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”. Accordingly, the Court can

examine into all the relevant and material facts surrounding the said

“termination”, provided of course the Court complies with the

requirement in the said Section 9.(1) that “the parties to the

proceedings shall be given the opportunity, if they so desire,

of adducing evidence in regard thereto.”

In the instant case the Court ensured that there was such

statutory compliance and in the circumstances proceeded to

consider the issue of “constructive dismissal”.

Whether the Worker was constructively dismissed

As stated in Oilfields Workers’ Trade Union v

Schlumberger (Trinidad) Incorporated4 “Constructive

dismissal occurs in circumstances where the behaviour of the

employer is so unreasonable or intolerable that it amounts to a

fundamental breach of the employment contract.”

The question therefore arises whether the behaviour of the

Company was so unreasonable or intolerable that it amounted to a

fundamental breach of contract, thus entitling the Worker to resign.

To determine such a question the Court looked at, inter alia, the

evidence of:

4 Trade Dispute No. 197 of 2002

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1) Ms. Matouk - as the Worker’s supervisor she was the one

responsible for instructing the Worker and he was

responsible for executing her instructions.

2) The Worker - :

a) he received a call from the former, Financial

Controller, Mr. Declan Pattron and based on the

things Mr. Pattron expressed to him he became

intimidated;

b) he also learnt that he was being fired and did not

want “the stigma” of being fired attached to him and

he produced a resignation letter; and

c) Ms. Matouk did not tell him to resign, instead he made

that decision;

3) Mesdames Matouk and Nunes and Mr Rahamut that prior

to his resignation the Worker had informed them that he

intended to resign to go to Canada and that Ms. Matouk

even prepared a letter of recommendation for him.

There is conflicting evidence as to whose idea,

recommendation or instruction it was to deny Mr. J. Matouk access

rights. However, whether it was the Worker’s idea or

recommendation or whether it was Ms. Matouk’s instruction to the

Worker to deny Mr. J. Matouk such rights, the point is that Ms.

Matouk’s testimony is that she agreed with the denial of access

rights to Mr. J. Matouk and it was to her that the Worker reported.

The Court does not agree with Counsel for the Union that

“the Worker found himself being questioned and/or pressured

and/or bullied” by Ms. Matouk and Mr. J. Matouk and that he had

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no choice but to tender his resignation. The Union has not

suggested that the instruction to deny Mr. J. Matouk access rights

was unlawful and there is nothing before the Court that points to the

instruction being unlawful. Therefore, even assuming (but without

the Court so finding) that Ms. Matouk did give the Worker the said

instruction, then regardless of any strained relationship which may

have existed between Ms. Matouk and Mr. J. Matouk, the Worker’s

responsibility was to carry out the instruction. He was fully aware

that Ms. Matouk was the only person who had authority to dismiss

him.

The Worker testified that he became intimidated based on a

conversation he had with Mr. Pattron, a former employee. He also

told the Court of information he received that he was being fired.

Thereafter he made the decision to resign. The Worker however

does not identify the source of the information - did it form part of

the conversation he had with Mr. Pattron or did it come from

elsewhere. At the end of the day, the Worker did not provide the

Court with evidence to show that the Company was planning to

dismiss him.

The evidence does not support the view that the Company’s

behaviour was a breach of the employment contract - far less as

a significant breach going to the root of the contract, thus entitling

the Worker to resign. The Court adopts the sentiments expressed

in Spafax Ltd. v. Harrison5, and cited by the Company, that

“Lawful conduct is not something which is capable of

amounting to a repudiation.” Consequently, the Court finds that

the Worker was not constructively dismissed.

5 [1980] IRLR- page 443

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In the Court’s opinion the Worker, having taken into account

all factors he considered relevant, decided he no longer wished to

be employed with the Company and therefore resigned voluntarily.

Whether the Company was entitled to pay the Worker one

month’s pay in lieu of notice, consequent upon his letter of

resignation.

The Court looked at inter alia:

a) the offer of employment dated 2nd September, 2003 which

provided that the “contract is terminable by one (1) month’s

notice by either party”;

b) in his letter of resignation dated 18th February, 2005 the

Worker stated that his resignation was to take effect from

18th May, 2005; and

c) Ms. Matouk’s evidence that she told Messrs. Alexis and M.

Matouk to accept the Worker’s letter of resignation;

Under his employment contract, the Worker was obliged to

give the requisite length of notice. It is worth saying that

notwithstanding that the letter dated 2nd September, 2003 specifies

that the contract is “terminable by one (1) month’s notice by

either party”, the words “at least” are implied, in relation to the

length of notice. In this case the Worker gave not just one month’s

notice, but three months’ notice. There was no question of the

Worker requesting an extension of three months, as the Company

sought to argue. According to Ms. Matouk’s evidence the Company

accepted the Worker’s letter of resignation. The Company therefore

cannot on the one hand acknowledge and accept the Worker’s act

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of terminating his services with the Company and then in the same

breadth purport to be the one terminating the very services, with

one month’s salary in lieu of notice. The Company’s letter of 22nd

February, 2005 did not and could not have had the effect of

reversing the Worker’s letter of resignation. The letter of resignation

therefore stands.

The Company might have felt that for security reasons the

Worker should leave immediately, given the nature of his job. There

can be no quarrel with such a judgment call by the Company, but it

must abide by the Worker’s letter of resignation, which it accepted,

and therefore ought to have paid the Worker three months’ salary,

taking him to his desired date of exit.

In light of the evidence the Court is of the opinion that the

Company was not entitled to pay the Worker one month’s pay in

lieu of notice and such action by the Company was not in keeping

with good industrial relations practice.

FINDINGS

1. The Court could consider the issue of constructive dismissal,

despite the wording of the Certificate of Unresolved Dispute;

2. The Worker was not constructively dismissed but had

resigned voluntarily; and

3. The Worker was entitled to be paid three months’ salary, not

one month’s salary in lieu of notice as was paid by the

Company.

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DECISION

The Court finds that on the totality of the evidence the Worker was

not constructively dismissed, but had resigned voluntarily; and that

the Worker was entitled to be paid three months’ salary, in keeping

with good industrial relations practice.

ORDER

The Court therefore orders the Company to pay to the Worker,

Adesh Birbal, a sum representing the difference between the three

months salary (which would have taken him to his desired date of

resignation) and the one month’s salary which he received, with

interest at the rate of 12% per annum from 22nd February, 2005 to

the date of payment on or before 15th March, 2010.

Mr. Ramchand Lutchmedial Chairman

Mr. Gregory Rousseau

Member

Mrs. Yvette Simon Member

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