Supreme Court
Action No. 190 of 1983
30th September, 1983.
Rajasingham, J.

Mr. Michael C.E. Young for the Applicant.
Messrs. Denys Barrow and Edwin Flowers for the Respondent.

Declaration that termination of employment unconstitutional - Constitution of Belize - United General Workers Union - Trade Union Membership - Whether the termination of the applicant's employment on the basis of his membership and participation in union activities contravenes sections 13 & 17 of the Belize Constitution - Application dismissed - Costs.

J U D G M E N T

The Applicant in this case seeks redress under section 20 of the Belize Constitution in the form of a declaration that the termination of his employment by the Development Finance Corporation on the grounds of his continued membership in the United General Workers Union is unconstitutional. He also applies for a declaration that the termination of his employment by the Development Finance Corporation on the ground of his association with the United General Workers Union is unconstitutional. The grounds for his application are stated as being that the said termination of his employment by the Development Finance Corporation contravenes the provisions of section 13 of the Constitution and section 17 of the Constitution.

The Applicant is the holder of a Bachelor's degree in Economics. He was first employed by the Development Finance Corporation as Industrial Field Officer with effect from 1st March, 1976 and his appointment to that office was subject to certain terms and conditions of employment set out in the annexure to the affidavit filed on behalf of the Respondent and marked "C.M. 2." The Applicant acted as head of the Industrial Division of the Corporation from the 1st March, 1977 to the 31st May, 1977 and was appointed Economist and head of the Economics Division of the Corporation with effect from the 1st June, 1977 until the termination of his services on the 18th of April, 1983. The appointment of the Applicant was in so far as this application is concerned, subject to the same terms and conditions of employment as those to which he subscribed or to which he became subject at the time of his first appointment. There have been some slight amendments subsequently, but they are not relevant to his application.

In or about 1981, the Applicant participated in the activities of the General Workers Union or rather the United General Workers Union. This participation was not welcomed by the Management of the Development Finance Corporation for the reason that the Applicant, holding management status in the Corporation, would have been a Party to any negotiation by the management with the Union as to the terms and conditions of its workers. Although the Applicant himself was permitted for some time to participate in union activities, with the signing of a new agreement between the Development Finance Corporation and the General Workers Union on the 1st January, 1983, the Corporation wished the Applicant to discontinue his union activities as the General Manager of the Corporation felt that such activities were inconsistent with his position as part of the management of the Corporation. By a letter dated the 24th March, 1983, the Applicant was required to elect whether be proposed to continue as a member of the union or alternatively to carry out his duties as a full time officer of the corporation. This communication clear1y suggests that he could not do both - be a member of the union and carry out his duties as full time officer of the corporation.

The letter of 24th March, 1983, requires the Applicant to reply by the end of that month. The Applicant never replied to that letter. Subsequently, by letter dated the 8th of April, 1983, the Applicant was informed that the Board of Directors of the Corporation had decided to terminate his employment forthwith. The letter goes on to state that in pursuance of the terms and conditions of his employment he was being paid the equivalent of three months salary in lieu of the notice required by those terms and conditions and also being paid a severance pay equivalent to three weeks basic pay for each of the seven years of service as well as 50% of the Corporation's contribution to the Pension Fund on his behalf. The letter thanks the Applicant for his years of service and was accompanied by a cheque drawn in his favour for $15,153.42 being the amount due in respect of all these items less money owed by him to the Corporation. This termination was followed by the application now before court which was filed on the 23rd June 1983. The facts so far set out constitute common ground between the parties. It is also common ground between the parties that the terms and conditions of service include a term providing for the termination of the service of permanent staff of the level of senior management and professional staff upon three-months notice on either side. That same term of employment goes on to say that where an employee's services are terminated other than as a result of disciplinary action the Corporation may make payment of severance pay on the basis of three weeks basic pay per year for every officer who has completed seven years service. The Applicant having completed seven years service the Corporation tendered severance pay calculated on that basis. This action of the Corporation indicates that the termination of the Applicant's employment was for "reasons other than as the result of disciplinary action." (vide paragraph E of the Conditions of Service).

This application is on the basis, as already stated, that the termination of the Applicant's employment by the Deve1opment Finance Corporation contravenes sections 13 and 17 of the Belize Constitution. Section 13 states that "except with his own consent a person shall not be hindered in the enjoyment of his freedom of assembly and association." Subsection 2 of that section sets out the exceptions to this right or freedom of assembly. The freedom of assembly as set out in subsection 1 includes the right in a person to belong to trade unions or to other associations for the protection of his interests. The exceptions set out deal with matters such as the protection of public health, defence, morality and other matters of public interest which may be provided for by law. The exceptions do not permit the passing of any law which would restrict the right to belong to a trade union or other association.

Section 17 of the Constitution states that no property of any description shall be taken possession of or compulsorily acquired except by or under a law. The Applicant states that by the termination of his employment for reasons which are not permitted by section 17 he has been prevented from earning such additional pension benefits as he may have earned by continuing in the service of the Corporation. That is the "property" he complains has been taken possession of or compulsorily acquired.

Mr. Barrow who argued the matter for the Respondent put his argument on three basis. His first ground for saying that the application should be dismissed, was that sections 13 and 17 which come under Chapter II of the Constitution entitled "Protection of Fundamental Rights and Freedoms", were not intended to guarantee purely private rights, that is, rights between individuals, but are intended as protection afforded to individuals against contravention of those rights and freedoms by the State or by some other public authority endowed by law with coercive powers. In support of his argument he drew attention to Chapter 1 of the Trinidad and Tobago Constitution which is entitled "The recognition and protection of human rights and fundamental freedoms." Section 1 of that Chapter starts off by stating "that it is hereby recognised end declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination" the several rights which are being set out in that section. Both in the Maharaj case and the Thornhill case the wrong complained of was against public officers. In both cases the criterion for granting relief was the proven existence prior to the passing of that Constitution of the right contravened by the State. Whereas the Trinidad and Tobago Constitution merely set out the rights in point form, the Belize Constitution sets out the different rights at some length and sets out specifically the exceptions that might arise under the laws of this country. No matter how one looks at it, Chapter 2 of the Belize Constitution deals with the same subject matter as that dealt with in Chapter 1 of the Constitution of Trinidad and Tobago.

In the Maharaj case Justice Phillips specifically gave his mind to the necessary implication that had to be drawn as being the primary objective of those sections in the Trinidad and Tobago Constitution and came to the conclusion that the primary objective of that Chapter was to prohibit the contravention by the State of any of the fundamental rights and freedoms declared and recognised by section 1 of the Trinidad and Tobago Constitution. Their Lordships of the Privy Council came to the clear view that the protection afforded to the individual was against the contravention of those rights and freedoms by the State or by some other public authority endowed by law with powers of coercion. They concluded that the chapter was concerned with public law and not private law. Their Lordships went on to say that "one man's freedom is another man's restriction and as regards infringements by one private individual of the rights of another private individual, this section implicitly acknowledges that the existing law of torts provided sufficient accommodation between their conflicting rights and freedoms to satisfy the requirements of the new constitution as respects those rights and freedoms that are specifically referred to."

The Maharaj case was quoted with approval in the case of Thornhill v Attorney General of Trinidad and Tobago which was heard by the Privy Council later in the same year. The effect of these cases is clearly to establish that Chapter I of the Trinidad and Tobago Constitution dealt with the contravention of those freedoms by the State or by some public authority and not by private individuals. In short the chapter guarantees to citizens of the State those rights, as against the State or any State authority and not against individuals, as were enjoyed by them prior to the passing of that Constitution.

The provisions set out in Chapter II of the Belize Constitution, commencing as they do with the words "whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual," clearly set out to guarantee to the citizen those fundamental rights already secured to the people of Belize by existing law. This does not mean that the laws in force at the time are to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the provisions of Chapter II. In so far as the Constitution overrides any law conflicting with its provisions, even if there are no precise provisions in the existing law that conform to the rights and freedoms set out in Chapter II, those rights are thereafter secured to the extent that no future enactment can, in any matter covered by that Chapter, derogate from the rights which the individual enjoyed at the date of the coming into force of the Belize Constitution except to the extent permitted by the Constitution itself. Since any enactment that purports to derogate from these rights may only be enactments passed by the State or by an authority vested by the state with the power to make subsidiary law, the guarantees in this Chapter can only be guarantees against the contravention of those rights by the State or by a public authority vested with such power by the State, and not by any individual.

The second leg of Mr. Barrow's argument was that the termination by the Corporation was in any event in keeping with the express terms and conditions agreed to by the Applicant at the time of his appointment to a post in the Corporation; that even if, by implication, the reasons for which his employment was terminated were reasons which amounted to a contravention of these rights guaranteed by the Constitution, they should not be valid reasons for redress, in so far as the termination itself was in such terms as were permissible under the agreement between the Applicant and the Corporation. He argued that the termination was in keeping with the express term that either side could terminate the appointment upon three months notice. Mr. Barrow argued that, although the history of the transaction might imply that the reason for the termination was his failure to renounce his membership of the union, the termination was still valid under the contract of employment and therefore no rights or freedoms of the applicant had been contravened. Mr. Barrow pointed out that this was clearly not disciplinary action and therefore the right to any hearing or any other procedure required even as a matter of natural justice, did not arise.

The terms and conditions of employment provide for termination upon three months notice, which may presumably be without stating reasons, and for disciplinary proceedings leading to dismissal and/or for forfeiture of salary. By choosing to terminate his services giving him all the benefits he was entitled to, the Corporation has clearly exercised its contractual right to do so in preference to dealing with him disciplinarily. If the Court were to hold that the termination was improper because it was for invalid reasons, the Court would be converting the termination to a dismissal for disciplinary reasons - which it was not; to do so would also result in denying to the Respondent Corporation a contracted right available to the Applicant too.

Mr. Barrow's third argument was, as I understood it, that since the Applicant's employment was for personal services and since there could not be specific performance in these circumstances, and since he had already ceased to be employed by the Respondent Corporation the making of the declaration now applied for would be of little, if any effect. It would, he said, be an empty declaration for the reason that nothing would flow from it. Mr. Young in the course of his arguments, stated that the Applicant now had better paid employment. One presumes from that statement that the Applicant would not in any event, if granted such a declaration, seek to revert to the employment of the Respondent Corporation.

In conclusion, I hold that the protection afforded by Chapter II of the Constitution of Belize against the contravention of the several rights and freedoms set out in those sections is protection against contravention by the State or some other public authority endowed by law with coercive powers, and not protection between individuals. Even if the Development Finance Corporation has infringed the rights of the Applicant I hold that these sections of the Constitution do not afford the Applicant the means of redress for such an infringement. The proper action for the Applicant would be to proceed under the existing law for damages.

Although this makes any further findings in this case academic, I also hold that the termination of the employment of the Applicant, having been made in accordance with the terms and conditions of employment which permitted the employer to terminate without reason upon three months notice and upon giving the Applicant the benefit of all terminal benefits, is not a contravention of any right of the Applicant. I further hold that so long as the termination was in accordance with the terms and conditions of employment the employer did not under those terms and conditions have to state any reason, and this in turn must mean that the employee cannot complain of such termination providing he receives all the benefits that he is entitled to receive under those terms and conditions. I also hold that although the specific term of employment refers to the giving of three months notice, that it is not a contravention of that term to offer the employee three months salary in lieu of such notice; the advantage of such an arrangement is clearly with the employee and as such is not a matter that he can complain of.

I therefore dismiss the application with costs.

----------OO----------