The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has dismissed the legal bid of more than 20 Freeport Container Port employees to overturn the Supreme Court's upholding of their employer's previously implemented seven-day work week on the grounds that was not in violation of the Employment Act.

Former Court of Appeal President Dame Anita Allen, along with since departed Justices Abdulai Conteh and Neville Adderley, in a written ruling found that Freeport Container Port Limited's (FCPL) eight-year-long "4 Gang Shift Pattern" was "not illegal nor was it in breach of the employees' employment contracts".

The shift pattern, according to the ruling, was implemented by FCPL between October 2001 and January 2009 to better accommodate its 24/7 operations. The shift pattern saw the employees divided into four “gangs” – gangs A, B, C, and D – and subsequently required to work varying shift hours for seven consecutive days.

Each gang had a designated pattern of work, and shifts were organised by day (8am-4pm), evening (4pm-12am) and night (12am-8am). They were allowed two or three days off at the end of the seven days. Their off days were indicated by an "O" in the schedule. Thus, according to the ruling, a shift pattern for a gang in a 14-day period could appear as "O,O,D,D,E,E,E,N,N,N,O,O,D,D".

When it went to trial, the presiding judge considered the issue of whether the shift patten contravened the employees' mandatory statutory obligation to have at least 48 hours of rest in every seven-day period in the manner prescribed under Section 9 of the Employment Act, 2001.

She found that "on its face", the 4 Gang Shift Pattern did not allow the employees at least one day off, but upon "closer examination", the shift pattern does provide two periods of 24 consecutive hours of rest: one right before the first day of work, represented by an "O", and the other between the completion of a day shift at 4pm and the commencement of the evening shift at 4pm the following day.

Regarding the Employment Act itself, the trial judge found that it does not specify when the seven-day period should begin, and that the onus is on the employer to ensure there is no period in which the employee is scheduled to work seven consecutive days without the mandatory 48 hours of rest.

She further noted that even if she found that the 4-Gang Shift Pattern was in contravention of the Employment Act, the employees provided "no evidence of their work hours on their alleged days off" when they said they were not compensated at twice their normal hourly rate of pay.

By Notice of Appeal filed on November 4, 2011, the employees challenged the judge's decision on 17 grounds. However, in the employees' grounds of appeal and before the appellate court, it was stated that there were only two real issues to be decided, namely whether there was sufficient evidence to find that the shift pattern violated the Employment Act and whether the Court had the power to make an Order to have the matter sent to the Registrar for an assessment.

Regarding the first issue, the appellants argued that the trial judge erred when she confined the issue of legality to the interpretation of section 9 and failed to consider the Employment Act as a whole. Alonzo Lopez, counsel for the appellants said section 9 was to be interpreted in light of section 10(a), which defined a "day off" as payable by double time.

It was further argued that the 24-hour periods between shifts should have appeared on the roster as off days, represented by an "O", and since they were not, none of the 24-hour rest periods in between shifts, such as the one between the day and evening shift, could constitute a rest period that was in conformity with the Employment Act.

Mr Lopez submitted that the fact it was not not represented on the schedule as a day off had the effect of limiting the overtime rate of pay to time-and-a-half rather than double-time. He argued that after five days of work (40 hours), any period scheduled as a work period should have instead been scheduled as an off day and consequently paid double-time for because it exceeded the standard hours of work.

Mr Lopez relied on the evidence of one of the appellants, Lavard Wilson, whose time cards and pay sheets for 2008 were exhibited by FCPL. At trial, he contended that there were instances where the employees worked during their 24-hour rest periods in between shifts, but were not paid the requisite double-time

Conversely, Robert Adams, counsel for FCPL, in taking the court through the evidence, demonstrated how Mr Wilson's work hours were consistent with the shift pattern of members of Gang D, and "evidenced no occasions where he worked during any of the 24-hour off periods".

Nonetheless, the appellate judges ultimately found that the evidence Mr Lopez relied on concerning Mr Wilson was "insufficient" and did not prove that the 4 Gang Shift Pattern violated the Employment Act.

Regarding the second issue, Mr Lopez stated in his grounds of appeal that the evidence submitted by FCPL concerning Mr Wilson (his work schedule, master sheet and time control card) for 2008 could be used to illustrate that if Mr Wilson was properly paid, then they were not properly paid. Similarly, if Mr Wilson was not properly paid, then they were not properly paid.

Mr Lopez argued that the trial judge was wrong to consider the defence raised regarding the second issue, that the employees were paid for the hours worked, and that a question seeking adjudication on an employee's entitlement to overtime pay for periods they may or may not have worked was not to be considered.

Mr Lopez submitted that if the appellate court found that the trial judge erred, then an Order for assessment of damages should be made in respect of all of the appellants. Mr Lopez argued that it was unnecessary to produce evidence before the trial judge in respect of that issue, because it should have been referred to the Registrar for assessment where the evidence would then have been "properly supplied".

He said fresh evidence is supplied to the Registrar each time a matter goes there. He further contended that at best, the court could have referred the matter in relation to Mr Wilson to the Registrar.

Mr Lopez relied on Order 37(1)(b) of the Rules of the Supreme Court 1978 in advancing his argument that the trial judge should have referred the matter for assessment before the Registrar.

However, the appellate judges noted that under that rule a matter can only be remitted for assessment if the judge has made a determination on liability. The appellate judges said in the present matter, apart from Mr Wilson's time card and pay sheet, the appellants submitted "no evidence" concerning the other employees.

"There was not even a calculation for the period for which the claim was being made for overtime, as was promised in Mr Lopez's submissions," the ruling said. "The learned judge could not refer the matter for assessment because the evidence did not show that the appellants in fact worked during those periods for which it had been established that they would have been entitled to double time.

"For us to apply our sub-rule and refer the matter for assessment, the appellants would have to show why the trial judge was wrong in her decision. Here they have failed to do that. Therefore, we found that while the court had power to make an Order requiring the matter to be sent to the Registrar for an assessment, she could not for the lack of evidence.

"The judge's decision in respect of assessment was therefore upheld, and the appellant's request for an Order was denied. For the foregoing reasons, the appeal was dismissed."

No order was made as to costs, the ruling added.