Reid v Cocoloba Caribbean Ltd (Dba Cocoloba Hotel) et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: George-Creque, J.,Re
• Judgment Date: 31 March 2004
• Neutral Citation: AI 2004 HC 7
• Docket Number: AXAHCV2000/0061
• Date: 31 March 2004

High Court

George-Creque, J.

AXAHCV2000/0061

Reid

and

Cocoloba Caribbean Ltd. (Dba Cocoloba Hotel) et al

Appearances:

Mr. Thomas Astaphan for claimant

Mr. Patrick Patterson for 1st defendant

Arbitration - Award made exparte against defendants in relation to dismissal of claimant — Defendants refusing to pay — Evidence that the arbitration tribunal had given the defendants a reasonable opportunity to appear — First defendant company sold to second defendant after date of award — Court held that both first and second defendants were jointly and severally liable on the award.

George-Creque, J.

1 By this action commenced by originating summons, the claimant seeks to enforce an award made by an arbitration tribunal (“the Arbitration Tribunal”) appointed under the Labour Department Act, Cap. L5 of the Laws of Anguilla. The claimant seeks, inter alia, the following reliefs –

• (1) A declaration that the award of the Arbitration Tribunal is binding on the defendants jointly and severally, pursuant to section 17(1) of the Fair Labour Standards Ordinance 1998 No. 8 of 1998

• (2) An order directing the defendants, whether jointly or severally, to pay the sum of US $18,560.29 awarded to the claimant by the Arbitration Tribunal.

2 The claimant swore and filed in support of her summons an affidavit on March 26th 2000. Mr. Manoug Nicolian on behalf of the 1st defendant swore and filed an affidavit in response on July 14th 2000. By the time of trial of this matter a judgment in default of appearance had been entered up against the 2nd defendant herein. The proceedings against the 3rd named defendant had been discontinued.

3 It was agreed by counsel for both sides that the there was no need to call further oral evidence but to rely on the affidavits and exhibits filed respectively by the claimant and the 1st defendant, as the matters to be determined turned mainly on questions of law.

4 The background giving rise to this action may be stated briefly as follows –

• (a) claimant was dismissed by 1st defendant from her employment as front desk supervisor at premises owned and operated by the 1st defendant called “ Cocoloba Hotel” (my emphasis) on 8th July, 1994.

• (b) claimant being dissatisfied with her dismissal filed complaint with the Labour Commissioner under the Labour Department Act.

• (c) No settlement having been reached, the Minister of Labour, by appointment dated 24th November, 1995, made Mr. John Benjamin an Arbitration Tribunal pursuant to section 18 of the Labour Department Act to deal with the matter. The Arbitration Tribunal has been variously referred to in the proceedings and pleadings and documents exhibited in this matter as the “Industrial Tribunal” and the “Arbitrator Tribunal.”

• (d) On 27th March, 1996, the Arbitration Tribunal rendered its decision, in writing, in the matter entitled: “Case No. 003/96”, naming Oralyn Reid, as claimant v. Cocoloba Hotel, as employer, and made an award in favour of the claimant against The Employer (my emphasis) in the sum of US $18,560.29 such payment to be made on or before 30th April, 1996 (“the award”).

• (e) No payment has been made to the claimant pursuant to the award.

• (f) The Arbitration Tribunal, in the first paragraph of its decision, stated as follows — “This was the third appearance before the tribunal by the claimant and her counsel. There was no appearance by the employer or by anyone on behalf of the employer on any of the dates fixed for the hearing of the matter by the tribunal.”

• (g) The Arbitration Tribunal further stated in the second paragraph of its decision as follows –

“The tribunal was satisfied that it had given reasonable opportunity to the employer to appear and that it would be unfair to the claimant for the matter to be adjourned a fourth time, the tribunal having had no explanation for the non appearance of the employer. The tribunal ruled that the matter would be tried ex parte.”

5 The 1st defendant's challenges, to this action are, inter alia –

(a) that the appointment, decision and the award of the Arbitration Tribunal is not valid and binding as against 1st defendant on the ground that same was made, in respect of and against an entity named as “Cocoloba Hotel” and not in relation to the 1st defendant.

(b) That 1st defendant, a limited liability company registered under the Companies Act of Anguilla, was not effectively served with notice of the proceedings and hearings before the Arbitration Tribunal since, in essence, “Cocoloba Hotel” is not a legal entity and is not synonymous with the 1st defendant nor was there service on the 1st defendant's registered office as required by the provisions of the Companies Act. As such, the 1st defendant having not responded to the notice or appeared before the Arbitration Tribunal, did not submit to the jurisdiction of the Arbitration Tribunal.

(c) That in any event, there are no mechanisms in place by law by which an award of the Arbitration Tribunal may be enforced as the statute by which the Arbitration Tribunal was appointed does not provide, neither in the statute itself or pursuant to any rules or regulations thereunder, any mechanism for enforcement of any awards made thereunder.

(d) As a corollary to these main issues it was also argued that the 1st defendant is not liable on the award under the Fair Labour Standards Ordinance since at the time of making of the award namely 27th March, 1996, the business and property of the 1st defendant was between February and October, 1996 transferred to 2nd defendant. As such, section 17 of said Ordinance is of no assistance to claimant.

Is the award made against the 1st defendant?

6 The first issue for determination by the court therefore is whether the award is made against the 1st defendant so as to be binding thereon. Counsel for the 1st defendant contends that there was no reference of the matter to the Arbitration Tribunal by the minister as required by section 16(2) of the Labour Department Act and that the Arbitration Tribunal cannot refer a matter to itself. This contention is based, in my view, on an assumption that no reference was made as there is no evidence to support this. In the absence of specific factual or other matters appearing on the face of the record of the proceedings showing such an irregularity to exist then it must be taken that all that was required under the Act to be done was so done. Firstly, it is to be noted that the instrument of appointment of the Arbitration Tribunal refers to the matter as “ Oralyn Reid v. Cocoloba Hotel”. There was only one matter pending between the claimant and 1st defendant under the Labour Department Act and this was the dispute regarding the unfairness or otherwise of the dismissal of the claimant from her employment with the 1st defendant. The claimant's representations headed “Employee's Representations” filed with the Commissioner stated the parties as Oralyn Reid, as employee and Cocoloba Caribbean Limited, the 1st defendant herein, as employer and were filed on 15th February, 1994. Further, there were two letters to Lake & Kentish, a firm of barristers and solicitors acting on behalf of the claimant. The first letter dated 26th May 1994 came from Mitchell's Chambers, a firm of barristers and solicitors and was in the following terms –

“Dear Ms. Kentish,

Re

Oralyn id and Cocoloba Caribbean Ltd.

Further to our various telephone conversations when you inquired after the employer's representations due to have been filed by 10th January, 1994, this is to confirm that Miss P.J. Webster is the solicitor representing Cocoloba in the Industrial Tribunal.

Yours sincerely,

I.D. Mitchell”

The second letter dated 7th June, 1994 was from the firm of Webster Dyrud, a firm of solicitors and was in these terms –

“Attn. Miss Joyce Kentish.

Re

Oralyn id & Cocoloba Caribbean Ltd.

Dear Miss Kentish,

We represent Cocoloba Caribbean Limited in the captioned matter. We apologize for the delay in filing the employer's representations. Our Ms. Webster who has knowledge of the matter is absent from the jurisdiction until July 1st 1994 and we will file same shortly thereafter.

Thank you for your co-operation.

Yours faithfully,

Webster & Dyrud

Solicitors”

It is also of interest to note that the Arbitration Tribunal at page 3 of its decision made the following findings under the rubric “Findings” — “The Tribunal finds as a fact that Oralyn Reid was employed by Cocoloba Caribbean Limited trading as Cocoloba Hotel. …That she was dismissed on July 8th, 1994 as per letter of said date signed by Manoug Nicolian, Managing Director of Cocoloba Caribbean Limited.” The decision then ended in this manner — “The employer will therefore pay the...