Cerise Banks Respondent/Appellant v Executive Airlines Inc. Applicant/Respondent [ECSC]

• Jurisdiction: Anguilla
• Judge: SATROHAN SINGH JA,SATROHAN SINGH Justice of Appeal,ALBERT REDHEAD Justice of Appeal
• Judgment Date: 25 May 1999
• Judgment citation (vLex): [1999] ECSC J0525-2
• Docket Number: CIVIL APPEAL NO. 5 OF 1998
• Date: 25 May 1999
• Court: Court of Appeal (Anguilla)

[1999] ECSC J0525-2

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

(Civil)

A.D. 1998

Before:

The Hon. Mr. Satrohan Singh Justice Of Appeal

The Hon. Mr. Albert Redhead Justice Of Appeal

The Hon. Mr. Albert Matthew Justice Of Appeal (Ag.)

CIVIL APPEAL NO. 5 OF 1998

Between:

Cerise Banks

Respondent/Appellant

and

Executive Airlines Inc.

Applicant/Respondent

APPEARANCES:

Mr. Keithley F.T. Lake, Mr. Kenneth Porter with him for the Appellant

Mr. Gerald A. Watt Q.C. of the Antigua Bar, instructed by Mitchell's Chambers, Miss Josephine Gumbs with him for the Respondent

SATROHAN SINGH JA

1 On October 11, 1996,American Eagle, an airline also known as Executive Airlines Inc. (the respondent), unfairly dismissed the appellant, an employee of theirs for some nine years. The issue of her dismissal went to the Industrial Tribunal of Anguilla (the Tribunal). The Tribunal, acting under the provisions of Section 16 of The Fair Labour Standards Ordinance 1988 (the Ordinance) found unfair dismissal, and awarded the appellant compensation totalling $399,923 with costs, computed as follows:

"Computation:

1. Actual Loss of wages —11 Oct. to5 March 1997 22 weeks at EC$625 per week. EC$13,750 less 50% reduction	EC$6,875.00
2. Future loss of wages —3 years 3 yrs. At EC$30,000 = EC$90,000 less 50% reduction	EC$45,000.00
3. Loss of other benefits
(a) private medical insurance (not assessed)
(b) travel benefits -D2= US$25,200) I. -D3= US$16,000) = US$41, 200X3	EC$331,248.00
(c) Gains-sharing EC$600 p.a. x 3 years	1,800.00
4. Statutory benefits
(a) Statutory Notice -4 weeks	2,500.00
(b) Redundancy (no evidence adduced)	10,000.00
(c) Costs	2,500.00
Total EC$399,923"

"Computation:

2 The employer (respondent), unhappy with this judgment of the Tribunal, moved the High Court of Anguilla, by way ofCertiorari proceedings to have the same quashed. Saunders J heard the matter, confirmed the Tribunal's finding of unfair dismissal, but quashed the Tribunal's Award of compensation for future loss of wages, future loss of travel and gains sharing benefits and redundancy. The learned judge confirmed compensatory benefits under the heads of loss of wages and the statutory termination notice. He then referred the matter back to the Tribunal for a reassessment of compensation in the light of his views on the law as stated in his judgment. Saunders J also quashed the order of costs made by the Tribunal and made no order as to the costs of the Certiorari proceedings.

3 The employee (the appellant), now the unhappy person, appealed to this Court to restore the orders made by the Tribunal. The respondent filed a "respondent's notice." But, at the hearing of the appeal, gave a somewhat disinterested challenge to the judge'sorder refusing it costs in the Court below. It also did not pursue its challenge against the judge's confirmation of the $2,500 award of the Tribunal in respect of the statutory termination notice.

4 The real issue in this appeal is whether upon a proper interpretation ofS16 of the Ordinance, there was room for an award of (1) future loss of wages and (2) future travel and gains sharing benefits. Saunders J found against the appellant on this question. I therefore now address that issue.

SECTION 16: ITS INTERPRETATION:

5 The relevant portion ofS16 that requires interpretation is sub-section (3) which provides as follows:

"(3) Where the Tribunal orders that compensation be paid, it shall take into accountinter alia

• (a) any holiday with pay earned, but not yet taken:

• (b) any wages lost by the employee, on account of the dispute, up to the date of determination of the issue by the Tribunal;

• (c) the termination notice to which the employee would have been entitled; and

• (d) The employment category of the employee, his seniority and the ease or difficulty with which he can secure alternative employment."

6 The troublesome part of this section, was the meaning of or application of the phrase"inter alia" to the rest of the subsection. The learned judge used as an aid to assist in his interpretation, the maxim expressio unius est exclusio alterius. He gave no reasons for utilising this maxim, but, at the end of the day, his interpretation left the words "inter alia" in the provision with no meaning. Both Mr. Watt and Mr. Lake agreed that the learned judge used the wrong maxim and that he should have applied the ejusdem generis rule.

7 The maximexpressio unius est exclusio alterius is a concept of statutory construction for the principle that where one thing is expressed the other is necessarily excluded. It is a principle that is applied to words of exception. Where an act sets out specific remedies, penalties or procedures, it is presumed that other remedies, penalties or procedures that might have been applicable are by implication excluded. [See Bennion, Statutory Interpretation (Butterworths) 1984, P 844 —850 and Felix -v- SHIVA [198213 All ER 263. The maxim would not apply where there are general words followed by a list or class or genus of items or where its application, having regard to the subject matter to which it is applied, leads to inconsistency or injustice Dean -v- Weisengrund (1955) 2 All ER 438 and Blacks Law Dictionary Sixth Edition p 283.

8 I am satisfied that the judge erred when he applied theExpressio Unius principle in the general way in which he so applied it. With such a general application in the context of this legislation, the words "inter alia" therein became nugatory and had no meaning. That in my view, would have created an injustice to the employee and an inconsistency with the spirit of the provision. By its very name, and when read thoroughly, the Ordinance, despite its limitations when compared with Labour Ordinances in other jurisdictions e.g. Antigua, was intended to be employee friendly.

9 There is a presumption that words are not used in a statute without a meaning, and that effect must be given to all the words used, since the legislature is not deemed to use words unnecessarily. It is a rule of law that the legislature intends for the interpreter of an enactment to observe the maximut res magis valeat quam pereat [that it may become operative rather than null], so that he must construe the enactment in such a way as to implement rather than defeat, the legislative intention [Bennion p 270, 271]. The legislature does not act in vain. Where one construction would render words used by the legislature irrelevant or nugatory and another would give effect to those words, the construction which will effect rather than frustrate the will of the legislature is what is preferred.

10 In interpretingS16 (3) of the Ordinance, and more specifically, the meaning or application of the words "inter alia" therein, I would adopt a common sense approach to construction so that the will of the Legislature could be realised. I would firstly utilise the expressio unius principle, but only in a limited way, to give effect to the intention of the legislature, that compensation under S 16 (3) was intended to be limited to the four heads mentioned therein at (a), (b), (c) and (d). However, in order not to make the phase "inter alia" therein nugatory, I would make use of the ejusdem generis rule, to give it meaning by applying it within the walls of heads (a), (b), (c) and (d).

11 It is my considered opinion that upon a careful reading of the statute and upon a comparison of the same with comparable legislation in other parts of the region, that even though the intention of the legislature appears to be to limit the heads of compensation to the heads stated therein, by its use of the phrase"inter alia", it did not leave the respective...