St. George’S University Limited V Grenada Technical and Allied Workers Union
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
APPEAL/CLAIM NO. GDAHCV2008/0558
IN THE MATTER OF AN APPEAL BY THE APPELLANT PURSUANT TO SECTION 62
(1) (2) OF ACT NO. 15 OF 1999 FOR REDRESS AGAINST AN AWARD BY AN
ARBITRATION TRIBUNAL IN THE DISPUTE BETWEEN ST. GEORGE’S UNIVERSITY
LIMITED (SGU) AND GRENADA TECHNICAL AND ALLIED WORKERS UNION
ST. GEORGE’S UNIVERSITY LIMITED
GRENADA TECHNICAL AND ALLIED WORKERS UNION
Mr. Anthony Astaphan SC with Mr. Richard Williams instructed by Mr. Lloyd Noel
for the Appellant
Mr. Reynold C. Benjamin for the Respondent
2009: March 5
2011: June 16
2014: January 24.
 PRICE FINDLAY, J.: This is an appeal brought by the appellant against the
decision of the Arbitration Tribunal delivered on the 30th October, 2008.
 The grounds of appeal were stated as follows:
(1) The majority of the Tribunal erred in law and/or misdirected
themselves in law and in fact in that they purported to make
findings which were unsupported by evidence. As a result their
decision is unreasonable and erroneous.
(2) The majority of the Tribunal erred in law and/or misdirected
themselves in that they failed to properly consider the
submissions, and in particular the closing written address made
by the appellant’s Attorney at the proceedings of the Tribunal.
(3) The majority of the Tribunal erred in law and/or misdirected
themselves in that in their conclusion they considered the
evidence substantially, if not solely, from the perspective of the
respondent and failed to properly consider all of the evidence
before the Tribunal.
(4) The majority of the Tribunal erred in law and/or or misdirected
themselves in that they failed to properly consider, as a matter of
law, the appellant’s evidence and case that:
(a) Night allowance was intended to compensate
maintenance staff who were being asked to work only
after normal working hours;
(b) It had consistently refused to accept that night allowance
would be paid to all shifts;
(c) It had consistently paid night allowance only to the
maintenance staff and that;
(d) The payment of night allowance to all shifts including
overtime would lead to double payment which would be
and is unfair and unreasonable.
(5) The majority of the Tribunal erred in law and/or misdirected
themselves in that they failed to properly consider the material
evidence that the appellant had signed an agreement with “all
shifts” as an oversight and in error instead of limiting the night
allowance only to maintenance staff.
(6) The majority of the Tribunal erred in law and/or or misdirected
themselves in that they failed to properly consider, construe
and/or apply Article 11 of the agreement.
(7) The Decision of the Minority is right.
(8) As a result, a substantial wrong and/or miscarriage of justice have
been caused to the appellant.
 The respondent filed an Answer to the appellant’s notice contending that the
appellant had failed to identify the findings, submissions and law on which they
intended to rely in the notice of appeal:
In the notice of appeal, paragraph 5, the appellant purports to
challenge certain findings of fact of the Tribunal contrary to the
provisions of section 62 of the Act.
In the notice of appeal, paragraph 6, the appellant has failed to
identify the finding of law by the Tribunal against which the appellant
The Appellant’s grounds of appeal –
The respondent will respond to the appellant’s legal submissions on
the appellant’s grounds of appeal when served. However the
respondent notes that the appellant in paragraph 7.1 has failed to
identify the findings of the Tribunal which are unsupported by
evidence. In paragraph 7.2, the appellant failed to identify the
submissions that were not properly considered by the Tribunal.
Paragraph 7.4 are grounds of fact disguised as grounds or issue or
law. Paragraph 7.5 is also an issue of fact disguised as a ground in
The respondent will contend in legal submissions in reply to the
appellant that the Majority decision of the Tribunal is correct in law
and should be upheld.”
 This matter arose between the appellant and the respondent when negotiations for
a new industrial relations agreement was being negotiated.
 These relations began sometime in the 1980’s but there were periodic reviews
over that period of time. The periods under review for the purposes of this appeal
were 1st January, 2001 – 31st December, 2003 and 1st January, 2004 – 31st
 The issue for determination was the payment of the Night Differential Allowance
(NDA) – was it to be paid to all shift workers as alleged by the respondent, or was
it to be paid only to maintenance workers as was postulated by the appellant.
 It appears that the shift system was introduced for library staff, security officers
and drivers from the inception of the University. The maintenance workers worked
regular hours. When the University Club came into operation sometime in 2004,
workers there began working on a shift system.
 There were several industrial relations agreements between the parties. There
was one for the period 1997-2000, another for the period 2001-2003 and another
for the period 2004-2009.
 It was the last such agreement, the 2004-2009 Agreement from which this dispute
arose. The Terms of Reference for the Arbitration Tribunal were set out in a
document dated September 2008.
 In part it reads “WHEREAS the said dispute touches and concerns the USE,
MEANING and APPLICATION of the phrase:
“All Shift workers shall receive a Night Differential Allowance as follows:”
 The Tribunal was further mandated to consider, whether the above mentioned
I. All workers who were rostered to work outside the hours of 8:00
a.m. to 4:00 p.m. or 9:00 a.m. to 5:00 p.m. without overtime
being paid for hours worked under Article 8 – OVERTIME
WORK ON SATURDAYS, SUNDAYS AND PUBLIC HOLIDAYS
II. Only and exclusively shift workers in the Maintenance
Department of the University.”
 The University and the Union signed an agreement in 2001, Article 11 of that
agreement stated as follows:
“It is agreed that all workers covered by this Agreement shall receive the
following increases on their wages/salaries.
2001 2002 2003
5% on 2000 wages 5% on 2001 wages 5% on 2002 wages
NIGHT DIFFERENTIAL ALLOWANCE
All shift workers shall receive a Night Differential Allowance as follows: –
2001 & 2002 2003
4:00 p.m. – 12:00 a.m. – $3.00 $3.25
12:00 a.m. – 8:00 a.m. – $3.25 $3.50
 The University (appellant) continued to pay the NDA to maintenance workers only.
The appellant contends that this was the only category of workers who qualified for
this payment. It was never intended that any other class of workers would benefit
from this payment.
 The Union contended that the words in the agreement, “all shift workers” means
just that, all shift workers, not just the maintenance staff.
 The Tribunal (by majority decision) agreed with the Union’s position and it is from
this decision that the University now appeals.
 The Union makes the point that under the Labour Relations Act, s.62 that no
appeal lies against an award of the Arbitration Tribunal on any questions of fact
and that this appeal filed by the appellant is largely on questions of fact and ought
not to be entertained.
Section 62 of the Labour Relations Act reads as follows: –
“(1) When a trade dispute has been referred to an Arbitration Tribunal
under section 49 and the Tribunal makes an award in settlement of
the dispute, any party to the dispute may appeal to the High Court
against the award on any question of law, but no appeal shall lie
against the award on any question of fact.
(2) When an appeal has been made under subsection (1) to the High
Court from an Arbitration Tribunal, a further appeal lies to the Court
of Appeal from the decision of the High Court on a question of law
raised before the High Court, but no appeal shall lie to the Court of
Appeal on any question of fact.”
 In Edwards v Bairstow1, Viscount Simonds stated:
“For it is universally conceded that though it is a pure finding of fact, it may
be set aside on grounds which have been stated in various ways but are I
think fairly summarized by saying that the court if it appears that the
commissioners acted without evidence or on a view of the facts which
could not be reasonably entertained” …
In those circumstances the Court can overturn the decision of the Tribunal.
 The paragraphs in question which the Tribunal had to consider have already been
set out in this judgment and I will not repeat them again.
 But one has to look at the history of the negotiations between the parties to
understand how they came to their respective positions, and then to look at the
majority findings in light of that history.
1 (1955) 3 All ER 48 at 53
 From the record produced to the Tribunal it is clear that the NDA was first
conceived by the appellant to cover the needs of an expanding institution for
almost continuous maintenance of the facilities in question.
 Maintenance workers had previously worked “regular hours” and with the
expansion of the University and increased student population, maintenance of the
facilities on a continuous 24-hour basis became necessary.
 The appellant contends that from the outset, NDA was conceived to apply only to
 There seems to be some support for this in the statement of Bert Patterson, one of
the respondent representatives before the Tribunal. In his statement he depones:
“It should be noted that although there was tentative agreement on the
quantum for NDA for the period 1997-2000 of $4.50 and $5.50 per hour
on March 3, 2000 the Union and St. George’s University agreed on the
lower figure of $3.00 and $3.50 for the period 2001-2003 initially proposed
by the Union for the 2001-2003 negotiations.”
“The reason for this was because the 1997-2000 NDA was intended for
maintenance workers only and compensation for loss of overtime regularly
 He goes on to state: “Whereas the proposals and agreement for the period 2001-
2003 were intended for all shift workers as is practiced locally and internationally
not being compensation for loss of overtime by a particular department.”
 I can find nothing in the record to suggest that the appellant ever moved from the
1997-2000 position of maintenance workers alone benefitting from NDA, just a
statement by the respondent that there was a change in the 2001-2003
 When one examines the agreement and looks in particular at Article 11, the hours
of work specified therein are 4:00 p.m. to 12:00 a.m. and 12:00 a.m. to 8:00 a.m.
From the record, the Arbitration findings and the other documentation submitted, it
would appear that the persons who worked those stated shifts were maintenance
 Again, applying the mandate of the Tribunal to look at “the use, meaning and
application of” the Article, I find that the Tribunal was charged with looking at and
examining the history of the negotiations and how it was put into practice by the
 This was not to my mind a strict case of purely interpreting the words of the Article
as they appeared in the agreement, but called for an approach that took into
account all of the attendant factors in the operation of the agreement.
 That NDA was conceived to compensate maintenance workers only cannot be
lightly set aside. When one looks at the history of the matter, the appellant
maintained throughout the period of time not only in writing but in practice of only
paying the NDA to maintenance workers, a fact that seemed to have been
accepted by the Union which made no complaint about the payment to
maintenance workers only until 2003, one year after the commencement of the
Collective Agreement for the period 2001-2003.
 Given this matrix of factual circumstances I find it strange that the Tribunal found
that the Union never wavered from the position that the NDA was intended for all
 It is clear from the evidence that from 1997 when the NDA was first discussed that
the respondent Union was well aware that this was to be applied to maintenance
 I agree with Viscount Simonds in Edwards v Bairstow2:
“The primary facts as they are sometimes called do not in my opinion
justify the reference or conclusion which the commissioners have drawn;
not only do they not justify it but they lead irresistibly to the opposite
reference or conclusion. It is therefore a case in which whether it be said
of the commissioners that their finding is perverse or that they have
misdirected themselves in law, by a misunderstanding of the statutory
language or otherwise …”
 Further, in correspondence from the respondent to the appellant in 1999,
reference is made to a shift system being in operation for the following category of
workers: “Electricians, A/C Refrigeration Technicians, Plumbers, Computer
 That correspondence also referred to the hours of work for that class of worker.
They stated hours were: 4:00 p.m. – 12:00 midnight and 12:00 midnight – 8:00
 It is interesting that these are the same hours to which Article 11 in the agreement
 Again, in June 2000, the respondent Union wrote to the Labour Commissioner
stating that the appellant and respondent were locked in a dispute “over the
introduction of a shift system for Maintenance Personnel and Computer
Technicians”. Again, no mention of all shift workers but a specific class of worker,
to wit, maintenance workers.
 Again, in May 2001, another letter from the respondent to the appellant under the
rubric “Re: In the matter of shift work within the Maintenance Department.”
 It seems that the NDA and the shift system was to be applied to the Maintenance
Department and no other workers. All this leading up to the signing of the 2001-
 The appellant readily agreed that they had been in error in paying the NDA at a
daily rather than an hourly rate, but remained adamant throughout that this NDA
was for maintenance personnel only.
 While I agree that there was no duress in the signing of the 2004-2009 Agreement,
I agree with the proposition of the appellant, that there must have been an
understanding, given the history of the NDA, that it was to be paid to the
maintenance workers only.
 The respondent’s position is that the Tribunal was to look at the agreement and to
interpret the terms of the agreement and nothing more. The Tribunal must not
look at anything else in determining the meaning of the agreement.
 But the court finds that this was not the mandate given to the Tribunal, it was wider
in scope than that.
 I agree with the Lord President in Bovis Construction (Scotland) Ltd. v
Whatlings Construction Ltd.3 where he said:
3 1994 SC 351 at 357
“In my opinion the issue which has arisen between the parties in this case
requires that reference should be made to the previous correspondence in
order to resolve it. This is because the essential point which is in dispute
is not the meaning of the words used in the limitation agreement but the
circumstances in which it was intended to apply.”
 Likewise in these proceedings, the essential point in dispute is to whom the
allowance was to be paid. What class of worker was to benefit from the payment
of the NDA.
 He further referred to Inglis v Buttery & Co.4 where Lord Blackburn stated:
“It is legitimate to look at the surrounding circumstances and see what
was the intention of the parties expressed in the words used, as they were
with regard to the particular circumstances and facts with regard to which
they were used.”
 Further Lord Wilberforce in Prenn v Simmonds5 allowed prior negotiations to be
looked at in aid of the construction of a written document, but he recognized that
previous documents might be looked at to explain the aims of the parties in the
limited sense that the commercial or business object of the transaction ascertained
may be a surrounding fact.
 He went further to state that evidence of negotiations should be restricted to
evidence of the factual background known to the parties at or before the date of
the contract, including evidence of the “genesis” and objectively the “aim” of the
 In this matter, looking at the negotiating process going back to 1997 shows clearly
to this Court that from its inception the NDA was intended to provide for
4 (1878) 5 R (HL) 87 at 103
5 (1971) 1 WLR 1381
maintenance personnel and no other class of worker. Even the respondent in their
correspondence to the applicant recognized and acknowledged that this was the
class of worker intended to benefit from this allowance.
 Looking at the agreement in question itself, it makes reference to work hours
which are exclusive to maintenance personnel.
 The Tribunal failed to take into account these facts and issues when arriving at
their award. Had they done so they would not have arrived at the decision which
they did. I believe that they erred when they failed to do so.
 Blackburn, J in Reardon Smith Line v Hansen Tangen6 stated:
“No contracts are made in vacuum; there is always a setting in which they
have to be placed. The nature of what is legitimate to have regard to is
usually described as “surrounding circumstances” but this phrase is
imprecise, it can be illustrated but hardly defined. In a commercial
contract it is certainly right that the court should know the commercial
purpose of the contract and this in turn presupposes knowledge of the
genesis of the transaction, the background, the context, the market in
which the parties are operating.”
 The Privy Council was of similar view in the case of Donald Halstead v The A-G
of Antigua & Barbuda, Cosmos Phillips et al7 where it was stated:
“The recognized approach to construction is to consider not only the
words themselves but the circumstances with reference to which the
particular words were used and to ascertain the object which the parties
would have had in view in making the particular agreement.”
 I believe that the above-mentioned paragraph encapsulates the mandate the
Arbitration Tribunal had in this matter. They were to examine all the relevant
6 (1976) 1 WLR 989 at 995
7 Privy Council Appeal No. 53 of 1996
surrounding circumstances and use those circumstances to ascertain exactly who
the NDA was to benefit.
 I believe that had the Tribunal adopted this all-inclusive approach they would not
and could not have come to the conclusion which they did.
 Had they examined all the circumstances in their entirety I think they would have
come to a different conclusion. They misdirected themselves and as a result
arrived at an erroneous conclusion.
 I would therefore allow the appeal. I find that the workers to whom the NDA
applies are maintenance personnel and not all shift workers. I would award costs
in the sum of $6,000.00
Margaret A. Price Findlay
High Court Judge