COMMONWEALTH OF THE BAHAMAS IN THE SUPREME COURT APPEALS DIVISION 2010/APP/MAG/00066 BETWEEN THE COLLEGE OF THE BAHAMAS Appellant AND RAQUEL BARR EDGECOMBE Respondent Before: The Hon. Sir Michael Barnett, Chief Justice Appearances: Mr. Oscar Johnson & Mr. Audley Hanna Jr. for Appellant Mrs. Tamika Forbes, Ms. Olivia Forbes & Ms, Veronique Evans for the Respondent Hearing Dates: 19" October, & 3 November, 2011 JUDGMENT Barnett, CJ: This is an appeal from the decision of the Magistrate requiring the Appellant to reimburse the Respondent for monies deducted by the Appellant from the Respondent's salary.The Appellant is the College of The Bahamas (‘the College”) and the Respondent is a member of the College’s faculty. Although the transcript of the evidence before the Magistrate leaves much to be desired, | am satisfied that the following is common ground between the parties. In the early part of 2010 the College and the Union of Tertiary Educators of The Bahamas ("UTEB") were engaged in negotiations toward a new industrial agreement. The negotiations were unsuccessful and UTEB took steps to permit a lawful strike under the Industrial Relations Act After the strike vote was taken, UTEB advised the College that it proposed to go on strike commencing 19" April, 2010. The timing of the strike coincided with the end of a term of the College. Classes had been completed and the students would be taking exams. and the faculty would be required to invigilate the exams, mark the scripts and hand in the final grades. In anticipation of the strike, the College on the 16” April, 2010 wrote a letter to the faculty including the Respondent, setting out the College's position. The material parts of the letter were in the following terms: On March 22, 2010, the president of the Union of Tertiary Educators of the Bahamas (UTEB) informed The College of its intention to go on strike as of Monday April 19" should negotiations not be completed by Friday April 16". Since that time, negotiations have continued but will not be completed by the imposed deadline, The College is therefore preparing for a faculty strike. This is the most serious form of labour conflict and one The College can ill afford. itis intended to create pressure on The College to agree with the Union on matters with which we cannot in good conscience agree by holding our students hostage and disrupting their right to have exams held and grades submitted... (my emphasis)Monday morning ‘The College expects the strike to begin on Monday morning. This is a legal strike and it is entirely your right to strike. It is also entirely your right not to strike. For good order to be maintained, The College needs to know if you choose not to strike. If you choose not to strike, | ask that you inform your Dean or the Vice- President in your area or the College Librarian, if you are a Librarian, that you are carrying out your normal duties and intend to continue to do so. In this case, you are expected to fulfill normal duties and your salary will be paid as usual unless there is indication that you are actually not fulfilling these duties. These include, among others, exam invigilation and timely submission of grades. Faculty who do not communicate will be assumed to be on strike until the Union informs us in writing that it has called off or ended its strike. Faculty on the strike will not be paid. J understand that there is some confusion as to whether not paying faculty ‘on strike is legal. Please be assured that when a strike has been called and ‘employees go on strike, the law recognizes that such employees will not be paid. Conclusion The College does not want this strike. We would much prefer to continue to negotiate and work together to build the kind of institution of which all would be proud. We have no choice however, faced with this unrealistic deadline, but to plan for its consequences. 8. The Respondent did not reply to the letter, 9. UTEB went on strike on the 19" April as threatened. 10. The Respondent did not invigilate an exam on the 21 April, 2010 as she was required to do. The exam lasted 3 hours. 114. The Respondent did mark the scripts and handed in the grades of the students within the time specified in the regulations. She did nothing else. She did not attend the College or maintain any office hours on the 19" and 20" April, 2010, which was during the period of the strike.12. 13, 14, 15, 16 17. The strike lasted 3 % days. It ended about noon on the 22° April, 2010 The College then determined to deduct from the Respondent's salary a sum equivalent to 3% days pay, which was the entire period of the strike. The Respondent sued for her monies. The Magistrate ruled that the College was only entitled to deduct pay equivalent to 3 hours, the period for which she was required to invigilate the exams but did not do so. He required the College to reimburse the rest At the trial in the Magistrates Court, the Respondent admitted that she was “on strike”. However, there was no evidence led at the trial that the Respondent was required during the period of the strike to do anything other than invigilate the 3 hour exam on the 21% April, 2010, mark the papers and submit the grades. In her evidence at the trial given on behalf of the College, the Secretary of the College said: [The Plaintiff] was not paid because she was not at work. Her work during the period of the strike...duties of the faculty: exams, invigilate and ‘submission of grades. Classes were no longer in session.....No information ‘on research required to do. Not able to speak more relating to [Plaintiff] The other witness for the College, Mrs. Meyers, who was the Human Resources Manager, said: “During the period of the strike a series of examinations, marking...cross moderation if necessary to be called upon college. No specific details. Information would be on report yes. Virtue of decision, not to pay. Did not invigilate... examinations, based on a letter to report to Dean to carry out regular responsibilities. | did not have information that it in the office of President. Not aware of complaint of assisting students, nor marking papers, not aware of any complaints, course going on at the time.” And later No requirements to sit 9-5 at College of The Bahamas or on campus. To have exams marked on time. Yes it is a requirement. If papers turned in on time she would have fulfill her duties.18. 19, 20. Counsel for the College argues that the College was entitled to deduct from the Respondent salary her pay for the three days that she was on strike. He argues that the Appellant was entitled to find that the Respondent had withdrawn her labour and was not working during the period of the strike. This finding it was submitted can be made from the fact that the Respondent did not reply to the letter of the 16" April, 2010 confirming that she would not be on strike; and that the Respondent did not invigilate her exam as she was required to do and that the Respondent was not seen on campus indicating that she was at work. He argues that the finding that the Respondent was on strike was supported by the Respondent's own evidence at the trial that she was in fact on strike. Counsel then relies upon the decisions of the English High Court in Cresswell and Others v Board of Inland Revenue [1984] 2 All ER 713 and the House of Lords in Miles v Wakefield Metropolitan District Council [1987] | ALL ER 1089. In Creswell v Board of Inland Revenue (cited above) the plaintiffs were employed by the Inland Revenue as tax officers. As a result of the computerization of P.A.Y.E, the plaintiffs (who were members of the Inland Revenue Staff Federation) refused to operate the computers, and continued with manual operation, as before. The defendants responded by suspending them without pay until they were prepared to operate the new system. The plaintiffs contended that they were not bound to operate the new computers, and that the defendants were in breach of their employment contracts in requiring them to operate the new systems, and in suspending them without pay. The court held that it is an implied term of the employment contract that the employer has a unilateral right to alter the terms in the interests of technological change.24 22. In Cresswell, the court in considering whether the defendants were permitted to suspend the plaintiffs without pay for their refusal to operate the new system, Walton J said: ‘As soon as the plaintiffs made it clear that they were unwilling to work COP 1 and would not do so, the revenue made it clear that (i) it would not allow the plaintiffs to continue to work manually, as they desired, and (ji) that it would not pay the plaintiffs so long as they refused to work COP 1. At the same time, it also made it perfectly clear that it was not dismissing the plaintiffs, and that the plaintiffs were free to return to work at any moment they chose, provided, of course, that they were willing to comply with the requirement to operate COP 1. On the other hand the plaintiffs’ case on this is that that, whatever name may be given to it, is properly suspension, and that, under their terms of service, it is not possible for the revenue to suspend them unless and until certain well laid down disciplinary procedures have been carried out. On this part of the case, if the plaintiff's were correct this would mean that the revenue would have to go on paying them all during the time they were refusing to carry out the porfectly lawful requirements of their employer. Mr. Millet rested his case on the very simple ground that, so far as an employer and employee are concerned, the promises of pay and work are mutually dependent. No work (or, at any rate, readiness to perform whatever work it is the employee ought to be willing to perform if physically able to do so) no pay. This is such an obvious principle, founded on the simplest consideration of what the plaintiff would have to prove in any action for recovery of pay in respect of any period where he was deliberately absent from work of his own accord, that direct authority is slight, but sufficient. es In Miles v Wakefield MDC (cited above), the plaintiff, Miles was the Superintendent Registrar in the Wakefield Metropolitan District Council His duties included performing marriages. As part of trade union action, he declined to perform marriages on Saturdays which day was very popular with marrying couples. However, on that day he performed his other duties. The council, not wanting to terminate his services, imposed a cut in his remuneration, He sued the Council for payment. The House of Lords held that the salary payable to the plaintiff was not an honorarium for the mere tenure of office but had the character of remuneration for work done. If any employee refused to perform the full duties which could be required of him under his contract of service, the employer is entitled to refuse to accept any partial performance. In an action by an employee to recover his pay, it must be proved or admitted that the employee worked23. 24. or was willing to work in accordance with the contract of employment or that such service as was given by the employee, if falling short of his contractual obligations was accepted by the employer as. sufficient performance of the contract. In a contract of employment wages and work go together. The employer pays for the work and the worker works for his wages. If the employer declines to pay, the worker need not work. If the worker declines to work, the employer need not pay. In an action by a worker to recover his pay, he must allege and prove that he worked or was willing to work. In that, the plaintiff disentitled himself to salary for Saturday moming because he declined to work on Saturday morning in accordance with his duty. Since the employee had offered only partial performance of his contract, the employer was entitled, without terminating the contract of employment, to decline partial performance, and in that case the employee would not be entitled to sue for his unwanted service. Lord Templeman stated the position as follows: The consequences of counsel’s submissions demonstrate that his analysis of a contract of employment is deficient. It cannot be right that an employer should be compelled to pay something for nothing whether he dismisses or retains a worker. In a contract of employment wages and work go together. The employer pays for work and the worker works for wages. If the employer declines to pay, the worker need not work. If the worker declines to work, the employer need not pay. In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work. In that case the House of Lords held that the Authority was entitled to withhold his pay for the Saturday. In my judgment the decisions in Cresswell and Miles are authority for the proposition that an employee is not entitled to be paid when he refuses to do the work he is required to do by his employer. An employee is not entitled to choose what to do or only part of the work he is obliged to do and be paid for only that part that he does. An employer is not obliged to accept partial performance by an employee. As Miles only partially25. 26. 27. 28. performed his duties on the Saturday, he was not entitled to be paid for the Saturday. In the instant case, the Respondent was not required to do anything on the Monday and Tuesday of the strike, She was required to invigilate a three hour exam on the Wednesday which she did not do. After the exam on Wednesday she was required to submit her grades within 96 hours (which period was after the strike had ended) and she submitted her grades on time. In my judgment, as the Respondent did not invigilate the exam on the Wednesday, she was not entitled to be paid for the Wednesday. The College was not obliged to accept partial performance for that day. The Respondent is not entitled to be paid for the day in which she failed to perform her full duties. Counsel argues that by going on strike, as the Respondent candidly admitted, the Respondent “showed that she was not working or was "- or as set out in Cresswell v Board of Inland Revenue willing to work (cited above) “a readiness to perform whatever work she was require and able to do”, This he said enabled the Appellant to deduct from her salary for the entire period of the strike on the principle “no work no pay.” In my judgment, other than her failing to invigilate the exam for 3 hours, on the Wednesday and therefore failing to fully perform her duty on the 21 April, there is no evidence that the Respondent did not do anything that she was required to do at or for the College during the period of the strike. The Respondent candidly admitted that she was on strike and that is why she did not invigilate the exam. She did however mark her papers and submitted her grades within the time required by the rules to submit her grades.29. 30. 31 32. The issue in this case in my judgment resolves itself to the simple question, can an employee participate in a lawful strike on his or her own time without loss of pay. In my judgment the answer is yes. A strike is a withdrawal of labour by an employee or group of employees. The basis upon which an employer is entitled to deduct monies from the employee's wages during a strike is that the employee did not do the work he was required to do by his employment which would be the basis upon which he earned his wages. For example, an employee who participates in a lawful strike during his vacation cannot in my view have his wages reduced for not being at work or willing to work during his vacation. Nor in my view is an employer entitled to deduct any monies from the wages of an employee who works his normal hours of work during the day and decides to carry a picket sign on the picket line after his hours of work The Magistrate ruled that the College was entitled to deduct from the Respondent's salary pay equivalent to 3 hours for her failure to invigilate the exam as she was required to do, However, as the College was entitled not to accept the partial performance of the Respondent for the day in question, in my judgment the College was entitled to deduct a full days pay from the Respondent's salary and not just 3 hours pay. As there was nothing else that the Respondent was required to do during the period of the strike that she did not do, there was no basis for deducting other monies from her salary33, 34 In the circumstances, | will allow the appeal by varying the Magistrate's decision to the extent that the College is entitled to deduct an entire day's pay and not just 3 hours pay. I make no order as to cost Dated this 18" day of November, A.D. 2011 Dp? Barnett Chief Justice