NAVY, ARMY & AIR FORCE INSTITUTES ν. STELIOS PAPADOPOULLOS (1966) 1 CLR 204

(1966)1 CLR 204 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1966)1 CLR 204 1966 January 28 [ZEKIA, P., TRIANTAFYLLIDES, JOSEPHIDES, JJ.] NAVY, ARMY & AIR FORCE INSTITUTES, Appellants-Defendants, v. STELIOS PAPADOPOULLOS, Respondent-Plaintiff. (Civil Appeal No. 4546). Master and servant-collective agreement-Gratuity-Claim of gratuity based on collective agreement-Interpretation of agreement-Subsequent letter by appellants interpreting a clause of agreement-A gratuitous gesture-Not a valid interpretation or a legally binding amendment of clause. Contract-employment claim of gratuity based on collective agreement-interpretation relative clause in, agreement-Findings of trial Court-Not based on the correct interpretation of agreement. Employment-Gratuity on termination of services-Collective agreement-See under "Master and Servant" and "Contract" above. Appeal. Appeal against the judgment of the District Court of Nicosia (Pierides P.D.C.) dated the 15th September, 1965 (Action No. 2119/62) whereby the defendants were adjudged to pay to the plaintiff the sum of £454.333 mils, as gratuity due to him by defendants on the termination of his employment with them. St. Pavlides, for the appellants. Ph. Clerides, for the respondent. Cur adv. vult. The facts sufficiently appear in the judgment of the Court. ZEKIA, P.: The judgment of the Court will be delivered by Mr. Justice Triantafyllides. TRIANTAFYLLIDES, J: In this case the appellants-defendants appeal against the judgment of the district Court of Nicosia in civil action No. 2119/62, by virtue of which they were ordered on the 15th September, 1965, to pay to the plaintiff-respondent the sum of £454.333 mils plus interest thereon at 4% as from such date, and £49.200 mils costs. The said amount was adjudged in favour of the respondent as being gratuity due to him by appellants on the termination of his employment with them at the end of December,

1. Respondent was an employee of appellants since April, 1954, and whilst he was working as a restaurant-manager at the R.A.F. Station Nicosia, he was given notice on the 17th November, 1958, by appellants that his employment with them would cease on the 31st December,
2. It is common ground that such termination of respondent's services took place because of security reasons, in view of the then prevailing Emergency in the Island. Respondent was later on re-employed by appellants, from April 1959 until January, 1960, and then his services were again terminated, but this time for other reasons. The claim of respondent for a gratuity relates only to his Service until the 31st December,
3. Such claim has been based on a collective agreement dated 11th July, 1956, (exhibit 17) and made between the appellants and the NAAFI Employees' Independent Trade Union, of which respondent was a member at all material times. For the purpose of this judgment it is not necessary to go into the question of whet her or not this agreement constituted a binding agreement between respondent and appellants it is common ground that it was so. Clause 15 of such agreement provided, inter alia, as follows: "
4. Gratuity. An employee who shall become redundant for reasons outside his or her control shall be paid on termination of his or her services at the rate of two weeks' pay for each year of service calculated on the last rate of pay, up to a maximum of 30 years of service." It is clear, in the circumstances of this case, that the termination of respondent's employment, with effect front 31st December, 1958, was due to reasons "outside his control", in the Sense of the above clause 15; but it is also equally clear on the other hand, that such termination was not decided upon because respondent had become "redundant", in the sense of the said clause
5. Respondent in basing his claim to a gratuity on clause 15-in spite of the absence of the element of redundancy-has relied on an interpretation of clause 15 which allegedly was agreed upon between appellants and his aforesaid Trade Union in September,
6. It is true that by cause 21 of the said collective agreement it is provided that any question regarding its interpretation shall he dealt with by the parties thereto. Mr. Kyriakos Nathanael, the Secretary of the Trade Union concerned, has given evidence before the trial Court-which the Court has accepted-and he has stated that after the signing of the said collective agreement, in July, 1956, there were negotiations in August, 1958, between the Trade Union and the appellants-after the appellants had released certain of their employees on account of the prevailing Emergency and they had refused to pay them any gratuity under clause 15-and as a result on the 30th September, 1958, appellants addressed a letter to him, which is exhibit 18 in these proceedings ; it is useful to quote it in full: "General Secretary, NAAFI Employees' Union, 23, Evagoras Avenue, Nicosia. Dear Sir, Further to my letter of the 22nd September, 1958, I confirm below the decisions reached during our meeting held on the 5th August, 1958:
7. Employees in detention who are not convicted and whose service with the Corporation has been satisfactory will be considered for further employment upon their release from custody if for any reason it is not possible to offer such an employee further employment, his gratuity rights will be recognised upon his release from detention.
8. An employee who has not been convicted and whose services are terminated at the request of the Service Authorities, but who has in every way given continuously satisfactory service to the Corporation, shall not be debarred from receiving a gratuity in accordance with the relevant clause of the standing agreement.
9. Employees who are prevented from reporting for duty due to curfew will be paid wages for such absence provided that they work 50% of the time lost in nonworking hours, excluding week-ends, during the remainder of the week or in the following week". Yours faithfully, (sgd) H.D. Rake, Controller, NAAFI, Middle East". The trial Court basing itself upon the collective agreement (exhibit 17) as well as on the evidence of Mr. Nathanael and on the above letter (exhibit 18), had this to say in its judgment, at page 27 the record: "Basing myself on all I have already said, I am of the opinion that clause 15 is applicable not only in cases of redundancy hut also in cases of termination of employment for reasons outside the employee's control, and consequently I find that plaintiff is entitled to gratuity as regards the first period of his service". Counsel for appellants has, in this appeal, attacked the above finding of the trial Court alleging that it was not based on the correct interpretation of the collective agreement concerned, and particularly clause 15 thereof, and has, inter alia, argued, in this respect, that the effect of the subsequent letter, exhibit 18, was wrongly evaluated by the trial Court. On the other hand, counsel for respondent has argued that exhibit 18 constitutes an interpretation of clause 15 validly made under clause 21 of the said agreement. In deciding this appeal we have, first of all to give due effect to clause 15.There can be no doubt at all that it only Provides for the payment of a gratuity in cases of termination of services for redundancy; and we have to take "redundant"; to mean what it is ordinarily understood to mean, viz.-as also correctly stated by the learned trial Judge in his judgment-superfluous, excessive, super-abundant". As respondent's services were terminated in December, 1958, for reasons totally unconnected with redundancy in the above sense, but for security reasons, we do fail to see at all how respondent could ever be found to be entitled to the payment of a gratuity under such clause 15 itself. There remains to be dealt with, however, the question of a subsequent interpretation of clause 15, as allegedly made through negotiations between respondent's Trade Union and the appellants, which have culminated to the letter of the 30th September, 1958 (exhibit 18). In our opinion an "interpretation" can only explain the meaning of a provision in a manner compatible with the context of such provision. It is certainly not possible, by purporting to interpret a provision, to make out of it something which is directly excluded by its very wording. It is thus, really imposible to accept, that it was ever open to the parties concerned to "interpret" clause 15, by agreement, in such a manner, as to make it applicable to cases of termination of services, otherwise than on the ground of "redundancy", when the express wording of such clause 15 renders "redundancy" a condition precedent to the payment of a gratuity thereunder. Such an "interpretation", as above, would amount in effect to an amendment of clause 15 rendering it applicable to a case where the termination of services, though due to reasons outside the control of the employee concerned, was not due also to redundancy. We have considered, therefore, whether or not it was at all possible to treat the letter of the 30th September, 1958, (exhibit 18) as a later agreement amending and extending, as stated above, the effect of clause
10. To this purpose we have examined carefully the contents of such letter: and it is clear that it is paragraph 2 of this letter which would be applicable to a case such as respondent's. The wording of this paragraph obviously indicates, in our opinion, that what was embodied therein was a gratuitous gesture of appellants, and nothing more. The fact that such gesture was made after negotiations with the Trade Union concerned does not: necessarily render it a binding contractual obligation. After all, if the parties to the collective agreement in question, (exhibit 17) intended in fact to amend clause 15 thereof in a contractually binding manner there was nothing easier than to say and do so expressly-a thing which, how-ever they never did. On the contrary, as already stated, the very wording of paragraph 2 of exhibit 18 points unmistakably to a gratuitous arrangement and excludes the possibility of a legally binding transaction ; inter alia, the expression herein "shall not be debarred from receiving" is, in the circumstances of this case, consistent only with a gratuitous statement of intent of the appellants to treat cases coming under paragraph 2 of exhibit 18 as if they were covered by clause 15 of exhibit 17, though in fact they were not so covered, provided that the individual merits of cacti employee concerned justified such a gesture in his favour. Thus, in the light of all the foregoing, we have reached the conclusion that it was not properly open to the trial Court to treat exhibit 18 either as a valid interpretation or as a legally binding amendment of clause 15, and that as respondent's services were terminated in 1958 in circumstances not entitling him to a gratuity under the said clause 15, which still stands unamended in any material respect, the judgment of the trial Court, as based on clause 15 and exhibit 18, is erroneous. In the result this appeal is allowed and the order of the trial Court is hereby set aside. No order as to costs here and in the Court below. Appeal allowed. Order of trail Court set aside. No order as to costs here and in the Court below. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο