human rights & business (and a few other things)

Important Decision of the Caribbean Court of Justice on Labour Rights

On 6 July, the Caribbean Court of Justice (CCJ) delivered a judgment in favour of six migrant banana workers involved in union activities against Mayan King Limited, a company that owns citrus and banana farms, in an appeal coming from Belize brought by the company. The Caribbean Court of Justice is a shared final court of appeal for currently three Commonwealth Caribbean countries: Barbados, Guyana and Belize. Jamaica is probably the next country of the region that will stop sending their appeals to the London-based Privy Council and switch to the CCJ as well. In a forthcoming article in Public Law (October 2012) I have conducted a human rights assessment of the Court and concluded that its very creation constitutes a positive step towards better access to justice in the region. This straightforward judgment against Mayan King, delivered by the Honourable Mr Justice Saunders, shows once again the key role superior courts can play in protecting the rights of vulnerable groups.

The judgment addresses three main points.

First, an evidentiary point: the company argued that these workers were fired because of poor performance at a time when a larger group of workers were also laid off on financial grounds, while the six claimants contented that it was because of their leading role in unionizing the workers. The Court recognised the difficulties inherent in proving such facts in these terms:

[22] It seems to us (…) to be somewhat naïve to expect (…) that in cases of this kind there will always be found a “smoking gun”. These cases are (…) more often than not established on the basis of reasonable inferences and here, there was ample scope for the trial judge to draw such inferences from the evidence that was led.

It concluded as follows:

[26] If indeed a smoking gun has to be found in this case then one can perhaps find it in the open admission by Management that at least some of the claimants were dismissed because they were “distracted” by their union activities. It seems to us that in light of the provisions of the [Trade Unions and Employers Organisations (Registration, Recognition and Status)] Act, unless one can provide positive evidence that union activity is seriously interfering with a worker’s job performance, it is a contravention of the Act merely to adduce as a legitimate reason for dismissing a worker the circumstance that the worker is “being distracted by union activity”. The Act was passed precisely to allow workers to engage in union activity without fear of dismissal solely on account of being so “distracted”.

[27] The printed evidence on its face, even without the benefit of seeing and hearing the witnesses, compels one to agree with the trial judge that there was cogent evidence against the company.

The second aspect of the judgement concerns the sum awarded to the workers in damages. The trial judge had awarded $70,000 to each worker, while the Court of Appeal of Belize brought this sum down to $30,000, covering both the loss of salary and lump sum in compensation. An important aspect of the case is that some of the dismissed workers were living on Mayan King’s premises with their families and, on top of losing their jobs, had to promptly vacate their houses, causing additional stress. On this point, the CCJ decided that each worker should be awarded a month salary (three months for one of them) and a lump sum of $15,000. This is in relatively sharp contrast to the award of one year of wages, together with a much higher lump sum, that was decided by the lower courts. The reasoning of the Court is as follows:

[42] In our view the sum of $30,000 awarded by the Court of Appeal for each litigant is on the high side bearing in mind this is a case purely in the private sector domain. 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.


[44] In fixing a figure to represent general damages a court must strive to avoid giving a sum that is simply too high or one that is just too low. There is no formula for reaching a precise figure between these extremes. (…) Having considered that $30,000 is too high and bearing in mind the character of the employment, we think that, given the circumstances of this case, the sum of $15,000 is just and equitable for the wrong done to them.

It is of interest that the Court decided not to punish the company too severely and to carefully explain its reasons for settling on this figure. As noted above, civil law is about compensation for an actual damage suffered and not about punishment. The workers’ lawyer expressed disappointment at the award being lowered but also pointed out to the press that the case was never about making money but about the recognition of the right to unionise.

The third point had to do with the company’s contending that the first instance trial had not been fair due to the delay (almost 5 years) in rendering a first judgement. This argument is swiftly dismissed in the CCJ’s judgement. The delay was nevertheless termed “unacceptable” by the dissenting judge, the Honourable Mr Justice Nelson ([88]).

This judgment is interesting from the point of view of business and human rights because of the potential for further cases coming from Guyana and Belize in relation not only to fruit but also mining and logging companies. In both countries there are significant numbers of migrant workers and indigenous peoples, both groups being usually in vulnerable positions and particularly impacted by multinational corporations’ operations. In Belize, the Supreme Court decided two cases asserting Maya land rights in 2007 and 2010, prior to the switch from the Privy Council to the CCJ. In both cases the Supreme Court referred to the Inter-American Commission case Maya Indigenous Communities of the Toledo District v Belize of 2004 in forming its opinion on the existence of indigenous land rights and whether they are protected under the Constitution of Belize. No doubt such questions will eventually reach the Caribbean Court of Justice.

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