1966 Jan. 28, June. 2 NAVY, A R M Y & A I R FORI r. INSTITUTES [ZEKIA. P.. T R I A N I A K Y L L I D I - S , JOSEPHIDIS, JJ.) N A V Y , A R M Y & A I R FORCE INSTITUTES, Appellants-Defendants, r. P. STELIOS PAPADOPOULLOS, Respondent-Plaintiff. SILLIOS PAI'AIXIPOULLOS (Civil Appeal No. 4546). Master and Servant- Coliecti\c agreement—Gratuity Claim of gratuity bused on collective agreement— Interpretation of agreement Subsequent letter by appellants interpreting a clause of agreement—A gratuitous gesture—Not a validinter pretation or a legally binding amendment of clause. Contract- - Employment•-Claim of gratuity based on collective agreement—Interpretation of relative clause in agreement- Findings of trial Court- Not based on the correct interpre tation of agreement. ο Employment (iratuiiy on termination of services -Collective agtcement -See under " Master and Servant " und "Con tract " above. Appeal. Appeal against tlie judgment of the Di.stricl Court of Ni cosia (Pierides P.D.C.) dalcd the 15th September, 1965 (Action N o . 2119/62) whereby the defendants were adjudged to pay lo the plaintiff the sum of £454.333 mils, as gratuity due to him by defendants on the termination of his employ ment with them. St. Pavlides, for the appellants. Ph. Clerides, for the respondent. Cur. adv. \ult. The facts sufficiently appear in the judgment of Hie Court. /i:M\, P. : The judgment of the Court will be delivered by Mr. Justice TriaiHafyllidcs. TfciANiAi vi.ι m i s , J. : In this case the appellants-defendants appeal against the judgment of the District Coml of Nicosia in civil action No.2119/62, by virtue of which they were ordered 204 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 dale, and £49.200 mils costs. The said amount was adjudged in favour of the respon-· dent as being gratuity due to him by appellants on the termi nation of his employment with them at the end of December,
- Respondent was an employee of appellants since April, 1954, and whilst he w;is working as a restaurant-manager at the R.A I". Station Nicosia, he was given notice on the 17th November, 1958, by appellants that his employment with them would cease on the 31st December,
- It is common ground that such termination of respondent's ser vices look place because of security reasons, in view of the then prevailing [Emergency in the Island Respondent was later on le-employed by appellants, from April 1959 until January, I960, and then his services were agnin terminated, but this lime lor other icasons. • Ihe claim <A~ respondent for a gratuity relates only, lo his service until the 31sl December,
- Such claim luis been based on j collective agreement dated l l t h Jnlv, ]f>56, (exhibit 17) and made between the appel lants and ιhe ΝΛΑΙΊ l-'mployees' Independent Trade Union, of which respondent was a member at all material limes. ΙΌι ι he purpose of this iiidgmenl it is not necessary lo go into the question o\' whether or not this agreement constituted a hmdiηL* ueieemenl between respondent and appellants ; il is common ground that it was so. Clause 15 of such' agreement provided, inter alia, as follows : "
- .Gratuity An employee who shall become redundant for rea sons outside his or hei control shall be paid on termina tion 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 lo a maximum of 30 years of service ". It is cleai, in the circumstances of this ease, that the termi nation of icspondent's employment, with effect from 31st December, 1958, was due to reasons "outside his control", in the sense of the above clause 15 ; but it is also equally clear 1966 Jan. 28, June, 2 NAVY. ARMY & AIR FORCF INSTITUTES n. STEI.IOS P\PADOPOUIIOS 1966 Jan. 28, June, 2 NAVY, ARMY & AIR FORCE INSTITUTES. I>. SttLIOS PAPADOPOULI.OS on the other hand, that such termination was not decided upon because respondent had become "redundant", in the sense of the said clause
- Respondent in basing his claim to a gratuity on clause 15— in spite of the absence of the clement of redundancy-has relied on an interpretation of clause 15 which allegedly was agreed upon between appellants and his aforesaid Trade Union in September,
- It is true thai by ISause 21 of the said collective agreement it is provided that any question regarding its interpretation shall be dealt with by the parties thereto. Mr. Kyriakos Nalhanael, 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 lo him, which is exhihit 18 in these proceedings ; il 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 :
- 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.
- 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 conti206 nuously satisfactory service lo the Corporation, shall not be debarred from receiving a gratuity in accordance with the relevant clause of the standing agreement.
- 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) ;is 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 of 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 but 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 Courl 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 inlcrprctation of clause 15 validly made under clause 21 of the said agreement. 1 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 lo take "redund a n t " to mean what it is ordinarily understood to mean, viz. --asalso correctly slated by the learned trial Judge in hisjudgment - " superfluous, excessive, super-abundant ". 207 1966 Jan.28, June, 2 NAVY,ARMY & AIR FORCE iNSTrrUTFS o. STELIOS PAPADOFOULLOS 1966 Jan. 28, June, 2 NAVY, ARMY & AIR FORCI, INSTITUTES υ. STELIOS PAPADOPOUI.LOS 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 con text of such provision. It is certainly not possible, by pur porting to interpret a provision, to make out of it something which is directly excluded by its very wording It is thus, really imposiblc 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 " redun dancy " 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
- 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 docs not necessarily render it a binding contrac tual 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 208 nothing easier lhan lo say and do.soexpiessly--a thing which, hovvcvci they ne\ei did On the contrary, as already staled, the very wording ol paragraph 2 of exhibit 13 points unmistakably lo a gratuitous Jiiangemenl and excludes the possibility o f a legally binding transaction , inter alia, the expression !herein " s h a l l not be dcbaned from receiving'' is, in the uicumslance·» of this case, consislenl only with a gratuitous statement of intent o f ι ΐ κ appellants to tieat cases cominc under paia;'u;ih ? o f exhibit 18 as if lhe> were covered by clause 15 ol exhibit 17, though in l a d they were not so cover ed, provided that the individual merits o f each employee concerned nisiified such a gesture in his favour. I hus, in the light of all the fmegoing, we have reached the conclusion that U was not piopcily open lo the trial Court to treat exhibit 18 either as a valid interpretation οι as a le gally binding amendment u f clause 15, and that as lespondenl's seivices were terminated in 1958 in circumstances not entitling him lo a giatuily undei the said clause 15, which still stands unamended in any maleiial respect, the judgment o f the trial C o u i t , as based on clause 15 and exhibit 18, is erroneous. In the r e f i l l this appeal is allowed and the oider o f the trial Court is hereby set aside No order as lo costs here and in the C'Miil below Appeal allowed. Order of trial ( omt set i/w'i/t*. No aider as to t m/v here anil in the Court V.W below. 1966 Jan. 28, June, 2 NAVY, A R M * & A I R FORCJ INSTITUTFS r. STTIIOS PAPADOPOI'I ι os