The Judicial Committee of the Privy Council Decisions

Green v Half Moon Bay Hotel (Antigua & Barbuda) [2009] UKPC 23 (02 June 2009)

Privy Council Appeal No 9 of 2008

Alistair Greene Appellant

v.

Half Moon Bay Hotel Respondent

FROM

THE COURT OF APPEAL OF

THE EASTERN CARIBBEAN

(ANTIGUA AND BARBUDA)

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 2^nd June 2009

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Present at the hearing:-

Lord Phillips of Worth Matravers

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Neuberger of Abbotsbury

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[Delivered by Lord Walker of Gestingthorpe]

1. This is an appeal by Mr Alistair Greene from an order of the Eastern Caribbean Court of Appeal made on 29 November 2006 dismissing Mr Greene's appeal from a judgment of the Antigua and Barbuda Industrial Court given on 20 October 2004. The principal ground of appeal is that the Court of Appeal failed to give reasons for dismissing the appeal. Miss Anesta Weekes QC, appearing with Mr Benjimin Burgher for Mr Greene, also relied on two subsidiary grounds of appeal in support, as she put it, of the principal ground. The respondent is a company which was Mr Greene's employer from 1995 until 3 November 1998. Its correct name is HMB Holdings Ltd ("HMBH"), although the name "Half Moon Bay Hotel" appears in all the formal documents used during the litigation. Neither side has taken any point on that.
2. Mr Greene was first employed at the hotel in 1982. In 1992 the management changed, and Mr Greene was employed by the new management company (which was working for HMBH, the new owner). Under a written contract dated 1 May 1993 he was employed as the hotel's maintenance manager at an annual salary of EC$57, 000 payable by monthly instalments of EC$4,750. He was required to attend during normal hours of business and otherwise as might be necessary for the proper performance of his duties. His monthly salary later went up to EC$5,500.
3. In September 1995 Hurricane Luis struck Antigua and the hotel was closed. The management company departed and HMBH itself took over management in January 1996. Mr Greene was retained as an employee of HMBH and he and other employees maintained the hotel's buildings, facilities and grounds (the hotel had still not reopened for guests at the time of the Industrial Court hearings). The managing director of HMBH was Mrs Natalia Querard. Her evidence was that (quite apart from the hurricane damage) the hotel's affairs were in financial disarray when HMBH took over. Her son Mr Constantine Querard was also a director of HMBH.
4. Mrs Querard's evidence, which the Industrial Court accepted, was that Mr Greene was expected to work from 7 am to 4 pm Monday to Friday (making a 40-hour week after allowing an hour a day for breakfast and lunch breaks). But Mr Greene was, she said, a very bad timekeeper, partly because he was building his own house nearby and constantly wanted to be at the site to supervise the building work. During June or July 1998 Mrs Querard told Mr Greene that she was thinking of paying him at an hourly rate (though still by monthly instalments) so that he would get $5,500 a month only if he put in 40-hour weeks. Then in October 1998, when she was away from Antigua, she asked her son to tell Mr Greene that this change was going to be put in effect. On 3 November 1998 Mrs Querard called a meeting of all the staff and indicated how the business was to be run from then on. There were several issues before the Industrial Court as to whether Mrs Querard's requirements were all changes, or whether some were simply reinforcing existing rules which had been eroded (the reorganisation of the workforce into two teams was certainly an innovation). Mr Greene spoke out at this meeting on various topics. There was an issue as to whether he became angry and spoke intemperately. There was a further issue as to whether he was actually dismissed, constructively dismissed, or simply told sarcastically (when he said that he needed a vacation) that "as far as [Mrs Querard] was concerned it could be a permanent vacation." That was the last day that he worked at the hotel.
5. On 15 December 1999 (after unsuccessful conciliation meetings with the Labour Department) Mr Greene started proceedings in the Industrial Court complaining that he had been unfairly dismissed, actually or constructively, and claiming compensation and arrears of holiday pay. By an amendment he also claimed severance pay. He did not make any other claim in respect of unpaid statutory benefits.
6. All these matters were gone into over eight days of hearings, at which Mr Greene gave evidence for himself and Mrs Querard, her son and two employees gave evidence for HMBH. Unfortunately the eight days of hearings were not consecutive, but were spread over nearly eighteen months, from September 2001 to March 2003. On 31 August 2004 Mr Greene applied for an order of mandamus requiring the Industrial Court to give judgment. An order of mandamus was made on 8 October 2004. The Industrial Court promulgated a written judgment on 20 October 2004.
7. The delay in the Industrial Court proceedings (both in the interrupted hearings, and in the preparation of the judgment) is regrettable. However the judgment eventually produced (which extends to 148 paragraphs) is in their Lordships' opinion an impressive judgment which does not suggest that the Industrial Court had failed to grasp the issues or recollect and assess the evidence. The judgment identifies the issues, summarises the two sides' cases and evidence, and makes clear findings of fact. In relation to the first main issue (whether HMBH's unilateral changing of Mr Greene's terms of employment amounted to a breach sufficiently serious to amount to constructive dismissal) the Industrial Court found (paras 114-117) that the change to hourly computation was a material change, but that it was not detrimental to Mr Greene "as it simply demanded that he fulfil his condition of the contract and would result in no loss once he did so." It could not therefore amount to constructive dismissal. On the second issue the Industrial Court found (paras 118-124) that none of the other issues raised at the staff meeting constituted a significant alteration in the terms of employment affecting Mr Greene. On the third issue the Industrial Court found (paras 125-142) that Mr Greene's uncorroborated evidence of his actual dismissal was very difficult to accept, but in any case a letter sent by HMBH within two days (in response to a letter from Mr Greene's attorney) made it clear that no dismissal had been intended. Mr Greene's claim was therefore dismissed except as regards accrued vacation pay.
8. Mr Greene appealed to the Court of Appeal. Under section 17 of the Industrial Court Act (Chapter 214) an appeal lay only on a point of law (or other grounds not now material). Mr Greene had further difficulty in obtaining the Industrial Court's notes of evidence. His case on appeal was set out in a notice of appeal dated 29 November 2004, written submissions dated 17 February 2006 and supplementary submissions dated 2 November 2006. These were all prepared by Mr Greene himself, acting as a litigant in person.
9. The appeal was heard, after an adjournment, on 29 November 2006. The Court (Sir Brian Alleyne CJ Ag, Gordon JA and Rawlins JA Ag) dismissed the appeal. The Court has never given written reasons for dismissing the appeal and there is most unfortunately real doubt as to how far the Court gave oral reasons. Two of the appellate judges' notebooks have been made available. Sir Brian Alleyne's note ends,

"Respondent not called on. Appeal dismissed. No order as to costs."

Gordon JA's note ends:

"Decision: Appeal dismissed. There were no grounds for disturbing tribunal's finding."

10. It is well known to all counsel that it is their duty to make a note of what is said in Court. Mr Greene, as a litigant in person, made no contemporaneous note, but his evidence was that he was told that he had only five minutes to address the Court, and that his appeal was dismissed without any reasons being given. It seems inherently unlikely that he was told that he only had five minutes, and the notes taken by the Acting Chief Justice suggest a considerably longer hearing. The attorney who appeared for HMBH has at a very late stage stated his recollection that Mr Greene spoke for "the better part of an hour" and that there was "an oral decision dismissing the appeal because there was no basis to disturb the findings of fact." But doubt is cast on this account by the attorney's statement that he was called on by the Court, but decided to say nothing. That too seems inherently unlikely and is contrary to what is in both judges' notebooks.
11. Their Lordships are therefore faced with real uncertainty as to what was said when the Court of Appeal dismissed Mr Greene's appeal. If an appeal is hopeless, very short oral reasons given by an appellate court may be sufficient. But especially when the appellant is a litigant in person putting forward a case on which he has very strong feelings, the Court (even if it considers that his case is hopeless and his strong feelings are misguided) should say enough to make clear to the litigant why his appeal has failed. In this case it might have been helpful for the Court to spell out to Mr Greene that his statutory right of appeal was limited to issues of law and that all his complaints seem to have concentrated on matters of fact. It might also have been helpful and saved time if, when the Court realised that Mr Greene was asking for written reasons, some written reasons, however brief, had been prepared and made available to him in order to explain why the appeal had been dismissed.
12. The key to the resolution of this appeal is, in their Lordships' opinion, whether there was any arguable issue of law which could have been made the subject of an appeal under section 17 of the Industrial Court Act. Miss Weekes and Mr Burgher have said, clearly and succinctly, all that could be said to persuade the Board that there was an arguable issue of law. But their Lordships are not persuaded of that. The Industrial Court made clear findings of fact, which are not open to challenge, and then applied to the facts as found principles of employment law which cannot, in their Lordships' view, be faulted.
13. In English v Emery Reimbold & Strickland Ltd (Practice Note) [2002] 1 WLR 2409 the Court of Appeal ended the judgment of the court with a postscript which is pertinent to this appeal (para 118):

"In each of these appeals, the judgment created uncertainty as to the reasons for the decision. In each appeal that uncertainty was resolved, but only after an appeal which involved consideration of the underlying evidence and submissions. We feel that in each case the claimants should have appreciated why it was that they had not been successful, but may have been tempted by the example of Flannery's case [2000] 1 WLR 377 to seek to have the decision of the trial judge set aside. There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision."

Those remarks were made with reference to first-instance decisions, but they also have some relevance to appellate decisions. Indeed, where an appeal is possible only on a point of law quite brief reasons may be sufficient.

14. For these reasons their Lordships will humbly advise Her Majesty that this appeal should be dismissed with costs.