CCJ Decision

The high cost of preventing employees from unionising

Source: International Law Office Published Nov. 7, 2012

In October 2000 the Trade Unions and Employers' Organisations (Registration, Recognition and Status) Act came into force in Belize. The act is intended to provide protection to both employers and employees to freely associate and form employees' and employers' organisations to protect their respective rights. While the act is designed to protect these rights, in a society such as Belize, where employers' organisations are uncommon, little if any benefit is derived by employers from the act. On the contrary, an employee's constitutional right to freely associate is entrenched in the act, thereby creating a new cause of action against an employer that violates an employee's right to unionise.

The Supreme Court is given extensive powers to redress the violation of an employee's rights under the act by making such orders as it considers just and equitable. Redress may include an order for reinstatement of an employee, restoration of benefits and other advantages and payment of compensation. The list is by no means exhaustive; but unlike similar laws in other jurisdictions, the act provides no guidance as to how the Supreme Court should exercise its discretion in awarding compensation.

The first claim made under the act was filed by six former employees of Mayan King Limited. The claimants were banana workers on Mayan King's banana farms. According to them, they were spearheading the movement to unionise the workers at Mayan King and were dismissed as a result of their union activities.

The Supreme Court determined that the termination of the claimants constituted union busting and that they were each entitled to BZ$70,000 as compensation for violation of their respective constitutional rights. On appeal by Mayan King, the Court of Appeal agreed that the claim was in private law against an employer and so there was no violation of the claimants' constitutional rights. However, the Court of Appeal stated that the act created a new cause of action and awarded one year's salary and BZ$30,000 to each claimant as compensation for injury to their pride and feelings.

Mayan King appealed to the Caribbean Court of Justice and on July 6 2012 the court delivered its landmark decision. The Caribbean Court of Justice upheld the trial judge's finding that the claimants' termination constituted union busting. However, it considered that an award of BZ$30,000 to each claimant together with one year's salary was high, particularly since the claim was in private law. The Caribbean Court of Justice reduced the award to BZ$15,000 for each claimant. The court stated that:

"The aim of the award cannot be to enrich unjustly or arbitrarily a claimant with a bountiful windfall. Further, the degree of reprehensibility of the defendant's misconduct is to be considered more for its impact on the victim bearing in mind that the function of the civil law is ordinarily not to punish the defendant."

The BZ$15,000 award was described by the Caribbean Court of Justice as an award for distress and inconvenience. According to the court, the:

"dismissals entailed much more than ending an employment relationship. The dismissals were accompanied by the immediate expulsion of the claimants and their families from their homes... these dismissals justify awards to the Claimants for distress and inconvenience."

It appears, therefore, that the award was based on the particular facts of the case, and that such an award will not be merited in every case where a violation is established.

It was noted that the claimants' evidence to assess pecuniary loss was sparse and unsatisfactory. The losses should have been established by clear evidence, and in the absence of concrete testimony it was not open to the Court of Appeal to infer loss. The Caribbean Court of Justice took into account that the employees were paid fortnightly and so were entitled to two weeks' notice of their termination. A further two weeks was added since, on the facts of the case, the dismissals also entailed the claimants' finding new housing arrangements. The award of one year's compensation was therefore reduced to one month's wages. One claimant had adduced evidence that he was unemployed for a period of three months and so his compensation was increased to three months' wages.

While the decision of the Caribbean Court of Justice provides some guidance as to how the Supreme Court should in future determine compensation for violation of an employee's rights under the act, it is important to note that the compensation awarded to the claimants was largely affected by the particular facts of the case. This was not a case of simple dismissal, but had the added element of requiring the claimants to leave their homes on short notice. While the claimants did not in fact leave until thee months after their employment had been terminated, the Caribbean Court of Justice emphasised that the nature of the dismissal required them to find alternative accommodation within 24 hours and considered that this must have occasioned some mental distress