(1988)1988October31 (STYLIANIDES KOURRIS.&BOYADJIS JJ) ALOUETCLOTHING MANUFACTURERSLTD, Appellants-Responden ts, v. ERINIATHANASIOU ANDANOTHER, Responden ts-Applicants. (CaseStated No. 254). iennination of Employment Laws. 1967-1983 — Ihe combined effectofsection 7(l)and3 — Temporarysuspension of employment foran indefinite penod by employers acting voluntarily— Conduct justifying employee to terminatehis employment. •'ermmation of Employment Laws. 1967-1983 —Redundancy — 5 Temporary suspension of employment for an indefinite penod by employers due to financial difficulties—Employers refused to terminate contract on ground of redundancy and, moreover, their stand, all along, was that the employees left their service voluntanly—Trial Court rightly did not consider question of 10 redundancy. Masterand servant —Employer suspending temporarily employment by a unilateral act due to financial difficulties—A breach of fundamental term of the contractof employment. Appeal —Appeal by way of case stated —Not possible to challenge 15 findingsof fact On 11.9.85 appellants, who were respondents' employers, suspended the latters' as well as other employees' employment with them «temporarily due tolackof funds». On 10.10.85 appellants' manager told them that the company 2 0 would resume work but he was not sure when this would happen The respondents considered themselves dismissed On 17,10.85 the appellants informed the respondents as well as the other affected employees that the reasons for this suspension ceased toexist and that theywould resume work asfrom 29.10.85. 2 5 626 1 C.L.R. AlouetClothingv. Athanasiou The Industnal Disputes Court, having recited section 7
(1)of the Law, concludedas follows 5 «On theaforementioned facts, theCourtrules thattheapplicants terminated their employment with the company, lawfully, such termination being considered as termination of the employment made by the employer, envisaged insection 3 of theLaw» This is an appeal by way of case stated. The questions submitted for consideration are 10 1 Whether on the facts, as found, the Industnal DisputesCourt nghtly or wrongly construed section 7
(1)of Laws 24/67-83. in conjunction with section 3 of thesame Law 2 Whether the tnal Court should have proceeded to examine whether the terminationof the applicants' employment was dueto redundancy within theambit of theLaw ornot 15 20 25 30 35 40 Held
(1)Inan appeal by way of case stated it is not possible to challenge thefindings of fact madeby thetnalCourt
(2)(a)The words of sections 7
(1)and 3 of the aforesaid law are clear and unambiguous Once the tnal judge had found that (ι)the employers had unilaterally suspended the operationof the contract of employment of the two applicants without payment to them of their wages, and (π) the applicants never consented to such suspension, the judge was bound to find, as he did, ιe that the employers' aforesaid conductamountedtoabreachof fundamental tprms of the contract of employment of the applicants which entitled the latter to terminate the employment under section 7
(1)of the Law andtopursue theirnght tocompensation calculated in accordance with section 3 of the Law, inthesame way, in which they would have been entitled to do, had their employment been terminated by theiremployers themselves for any reason otherthan thereasons set out insection 5 of the Law (b)Neitherthefact thattheapplicantswere making enqumesasto whether or when they would return to work, nor the meeting they had on 10 10 1985 nor the fact thatthey considered themselves as having been dismissed from their employment after such meeting northefact thatpriorto 10.10.1985theapplicantinApplication No. 465/85 found temporary employment elsewhere changes the situation oraffects inany way theirnghts.
(3)The question of redundancy was never raised before the tnal Court Appellants' version at the trial was always that they never terminated for any reason the applicants' employment Furthermore, the employers' manager, at his meeting with the respondents on 10 10.1985, refused to terminate the latters' 627 AlouetClothingv.Athanaslou
(1988); employment as redundant so as to enable them to claim compensation fromtheRedundancyFund.Itfollowsthattheanswer tothesecond questionisinthenegative. Appeal dismissedwith costs. Casesreferredto: c ReHjiCostas
(1984)1 C.L.R.513; Stylianides v. Paschalidou
(1985)1C.L.R. 49; ReLouis TouristAgency Ltd.
(1988)1C.L.R.
- Case stated. Case stated by the Chairman of the Industrial Disputes Court relative to his decision dated the 9th November, 1987 in 10 proceedings under sections 7 and 3 of the Terminationfof Employment Laws 1967-1973 instituted by Erini Athanasiou against Alouet Clothing Manufacturers Ltd. whereby they were adjudged to pay to applicant compensation and wages. P.Papageorghiou, for theappellants. 15 Ar. Georghiou, for the respondents. Cur. adv. vult. STYLIANIDES J.: Thejudgment of the Court willbe delivered by Mr.Justice Boyadjis. BOYADJISJ.: Thisisan appeal byway of Case Stated against 20 the decision of the Industrial Disputes Court in Applications 464/ 35and 465/85 which were triedtogetherwherebytheappellantsemployers were adjudged to pay to the respondents-employees compensation underthecombined effect ofsections7and3ofthe Termination of Employment Law 1967-1983 and wages in lieu: 25 of notice under section 9(l)(c)of the Law. The facts ofthe case asfound bythe Courtareas follows: The appellants, respondents in the aforesaid applications 464/ 1 85 and 465/85, are a company of limited liability.They carry on the business of manufacturers and sellers of ready made dresses. 30 They own a factory in the Industrial Area of Engomi. For convenience purposes we shall hereinafter refer to them as «the employers». 628 1 C.L.R. Alouet Clothing v. Athanaslou Boyadjls J. The applicant in Application No. 464/85 was employed as a dress-maker by the employers in July
- Her wages for the purposes of the Law were £44.00 weekly. 5 The applicant in Application No. 465/85 was likewise employed by theemployers as a dress-maker on 18.1.
- Her wages for thepurposes of theLaw were £37.76 weekly. The employers employ inthefactory about30 employees who are membersof theTradeUnionsof PEOandSEK. The work of the applicants was very satisfactory; in fact they 10 Afere considered by their employers as being amongst their best employees. · Duringseveral past years, theemployers happenedto suspend the work during certain periods which were agreed with the employees or theirTrade Unionsalways in accordancewith the 15 collective agreement in force. When theapplicantswenttotheirwork on 11.9.1985, they saw on the factory' s notice board a notice dated 9.9.1985 whereby the employers informed theiremployees thatdue tolack of funds (bank facilities) necessary for theperformance of theirorders andι 20 the continuance of the work of the industry, they suspended temporarily the employment of their employees as from 12.9.
- Thenamesof both applicantswere includedinthelist of employees whose employment was thus suspended. Copy of this notice was sent totheDistrictLabourOffice and totheTrade 25 Unions concerned. . As theaffected employees, includingthetwoapplicants,didnot Intend to accept the employers' unilateral decision to suspend their employment for an indefinite period, a decision taken notwithstandingthefact thattheiremploymenthad already been 30 suspended earlier in the year for the full period of ten days provided for inthecollective agreement, thematterwas reported toacertainG.Stavrou,anofficial of PEOTrade Union,whostated that, though the trade Union as such would not agree to the •proposed suspension, he left the matter entirely to the affected 35 employees to decide whether to accept or reject the new suspension. t. Themanageroftheemployers toldtheaffected employees that l they could apply to the Labour Office for unemployment benefit duringtheperiod of thesuspension of theiremployment. • 629 ι Boyadjis J. Alouet Clothing v.Athanaslou
(1988)Subsequently tothe above,theapplicants made enquirieswith their employers through the phone as to the time they were expected to resume their employment, but the employers would not give a definite answer. On about 10.10.1985, the applicants visitedtheoffice ofMr.G.Olympios,themanagerofthecompany, 5 inordertobe informed ofwhatwasgoingtohappen and whether, in case the employers would not be able to resume work, arrangements would be made for the satisfaction of their claims arising out of the termination of their employment. Thestand taken bythe manager wasthat he wasexpecting that 10 the company would resume work but he was not sure when this would happen. The applicants remarked that in such a case their employment should be terminated and that they should receive compensation from the Redundancy Fund, but the manager, on· the one hand, would not terminate their employment because, 15 being such good workers, he was needing their services and, on the other hand, he asked themtosignadeclaration whichhe had prepared to the effect that, incase they receive no compensation from the Redundancy Fund, they would have no claim for compensation against the employers. The applicants refused to sign the declaration and considered themselves as having been dismissed from their work. From that date onwards, the applicant in Application No. 464/85, applied and succeeded to obtain other employment asa sales assistant at a monthly salary of only£110.00. 25 After her employment was suspended indefinitely by the company, the applicant in Application No. 465/85 was temporarily employed by APOLLON company, she, a poor refugee with two children, being unable to remain indefinitely without employment and consequently without the means of life. 30 Notwithstanding this, she visited the manager's office on 10.10.1985 together with the other applicants and the Trade Union Official. Though the employers had terminated the employment of the applicants, on 17.10.1985 they addressed a letter to all the 35 employees informing them that the reasons for the temporary suspension of the work had been overcome, that the company would resume work on 29.10.1985 and that they were alt expected topresent themselves for work on the aforesaid day. 630 1 C.L.R. Alouet Clothing v. Athanaslou Boyadjis J. As it appears from the Case Stated, the submission of the applicants was that they lawfully terminated their employment with the company under section 7 of the Termination of Employment Law No. 24 of 1967 asamended.Ontheotherhand. 5 the submission of the employers was that they did not terminate the employment of the applicants who left their employment voluntarily having found better employment elsewhere. The Industrial Disputes Court expessed the view that the question which posed before itfor determination was whether the 10 employment of theapplicants was terminated by thecompany or whether they left their employment voluntarily. After reciting subsection
(1)*of section 7 of the Law, the Court answered the above question inthe following words: 15 «On the aforementioned facts, the Court rules that the applicants terminated their employment with the company, lawfully, such termination being considered as terminationof the employment made by the employer, envisaged insection 3 of theLaw». The Court then rejected the allegation of the company that the 20 applicants left their employment voluntarily and, as no other reason had been set up, it proceeded to assess the amounts to which the applicants were entitled. Translated inEnglish, thereasoning for theaforesaid decision of the Industrial Disputes Court as it appears from itsjudgment and 25 from the Case Stated was the following: 30 «In its previous judgments the Court stressed that any unilateral and arbitrary action by either party in a contract of employment causing a breach of any material term thereof, gives the aggrieved party the right to repudiate the contract and claim the relief provided by the law. In the present applications, without any prior consultations with their employees, the employers caused a breach of their * <1): Όταν ο εργοδοτούμενος νομίμως τερματίζει την απασχόληση του παρ' εργοδότη, λόγιο της διαγωγής του εργοδότου, τότε ο τερματισμός ούτος θειυρεϊται ως τερματισμός υπό του εργοδότου υπό την έννοια του άρθρου 3*. •7
(1)Whenthe employee legallyterminateshisemployment by reasonof his employer' conduct,such termination shall be consideredas a terminationby the employer in the sense of section3*. 631 Boyadjis J . Alouet Clothing v. Athanaslou
(1988)obligation to offer work to the applicants or in lieu of such offer, in case they were temporarily unable to do so, to pay them their agreed wages. Before suspending their work, the employers ought to obtain the consent of their employees as they had correctlydone inpreviousoccasions.Incaseswhere 5 an employer wishing the alteration of material terms of the contract of employment, takes unilateral action to that effect withoutpriorarrangementswithhisemployee,thelattermay, in the circumstances, treat such action as terminating his employment or as forcing him to submit lawfully his 10 resignation. Surely, this should be judged in the light of the circumstances of each case. The Courtconsiders itexpedient torepeatwhatwassaidin case No. 296/83, that it isunacceptable and unthinkable for the employer whenever it suits him and depending on the 15 volume of his business at any given moment, to suspend the operation of the contract of employment with his employees, in theabsence ofan agreement tothat effect inthecontractof employment and in the absence of an ad hoc consent by the employees.» Two questions were submitted for the decision of thisCourt by the learned President of the Industrial Disputes Court, at the instance of the appellants. They are the following: 1. Whether on the facts as found, the Industrial Disputes Court rightly or wrongly construed section 7
(1)of Law 24/67-83, in 25 conjunction with section 3 of thesame Law. 2. Whether the trial Court should have proceeded to examine whether the termination of the applicants' employment was due to redundancy within the ambit of the Law or not. Regarding the first question counsel for the applicants alleged 30 that the trial Court made conflicting findings regarding the time when the applicants terminated their employment with the company and, whereas, from one paragraph of the judgment it may be deduced that the employment was terminated on 12.9.1985 when the suspension of the work commenced in 35 accordance with the notice posted on the factory' s notice board by the company on 11.9.1985, inanother part of thejudgment it isstated thattheapplicantsconsidered themselvesashavingbeen dismissed from their employment on or about 10.10.1985 632 ^ 1 C.L.R. Alouet Clothing v. Athanaslou Boyadjis J. following the failure of the meeting in the manager' soffice held on the same day, in which they had taken part. Counsel further challenged the finding of the trial Court that the applicants were forced toterminate their employment due to the conduct of their 5 employers, and at the initialstageof hisaddress invited usto find, instead, what was his version at the trial, which the Tribunal had rejected, i.e. that the applicants had voluntarily terminated their employment for reasons unconnected with the employers' admitted conduct insuspending the works.Atasubsequent stage 10 of his address, however, Mr. Papageorghiou conceded that the Tribunalcorrectlyfound thattheapplicant inApplication No.464/ 85 hadrightfullyterminated her employment due tothe aforesaid conduct of the employers but still invited ustofind thatshe did so on 10.10.1985 instead of 12.9.1985 and that she had until then 15 accepted the suspension of her employment which was at the beginning made unilaterallybytheemployers. Relyingonthe fact that sometime between 12.9.1985 and 10.10.1985 the applicant inApplication No.464/85 obtained temporary employment with Apollon company to meet her urgent needs, an employment 20 which in his suggestion commenced on 16.9.1985 (no date is mentioned in the Court's relevant finding), and making a differentiation in the position of the two applicants on account of thisfact, counsel invited usto find, contrary tothe findings of the trial Court, that upto 10.10.1985thisapplicant had consented to 25 ,the suspension of her employment and, therefore, her finding of otheremployment duringthisperiod,i.e.on 16.9.1985 amounted toatermination ofheremployment withthe company decided by her voluntarily. Learned counsel for the appellants must have confused the 30 concepts of an appeal by way of case stated with an ordinary appeal where theSupreme Court, sittingasappellate Court, isnot bound byany findings of fact made bythe trial Court, and which. therefore, may be challenged before it by the appellant (see section 25
(3)of the Courts of Justice Law No. 14 of 1960 as 35 amended), albeit with little chance ofsuccess unless unwarranted by the evidence adduced. If the appeal isby way of case stated findings offactarenotthesubjectofreview.InreHjiCostas
(1984)1C.L.R.513,following thedismissalofhisapplication bythe Rent Tribunaltosetasideadefaultjudgment, theapplicant had moved 40 the Tribunal in the manner envisaged by the Rent Control Law 1983 to state a case for the decision of the Supreme Court. The application was refused by the Tribunal on the ground that the 633 Boyadjis J. Alouet Clothing v. Athanaslou
(1988)pointraised was notconfined topurequestions of Law andassuch could not be made the subject of a case stated under section 7 which provided that only a pure question of law can be stated to the Supreme Court by way of appeal. The applicant had then applied to the Supreme Court for leave to apply for order of 5 certiorari to quash the aforesaid refusal of theTribunal,inviewof the fact that the statement of a case to the Supreme Court on a point of law is obligatory and does not depend on the exercise of any discretionary powers on the part of the Rent Tribunal The Supreme Court gave the applicant leave to apply for certioran 10 Relevant on the matter now under consideration in the present case is the following extract from the judgment of Pikis, J ,at ρ 519 of the report «Itappears tomethatwhenever anissuerevolvesroundthe application of the law togiven facts, itraises a pure question 15 of law So long as the facts to which the Court is required to apply the law are not called in question, the point is a lego one It merely raises questions beanng on theinterpretation and the scope of the law Exploration of the ambit of the lav/ pn isalways a question of law » (See also Stratis Styhanides ν Phaedra Paschahdou
(1985)1 C L R 49, InRe Louis TouristAgency Ltd Civil Application 116/ 88, judgment delivered on 26th July, not yet reported *) What was said hereinabove concerning the inability and impropnety to challenge the findings of fact made by the Rent 25 Tnbunal on appeal by way of case stated under section 7 of the Rent Control Law (Law 23/83), applies with equal force in the present case where theappealby way ofcase stated isbeing made under Rule 17 of the Rules of Procedureset out in the Appendix to the Arbitration Tnbunal Regulations of 1968, which conhnues 30 tobe inforce byvirtue ofsection7of theAnnual Holidayswith Pay (Amendment)Law of 1973 (Law5of 1973) Theaforesaid Rule 17 was made by the Council of Ministers with the pnor advice of the Supreme Court under Section 12
(2){c) of the Annual Holidays „ with Pay Law, 1967, which reads as follows «12-
(2)Regulations madeunderthissectioiιshallinclude(c)provision for appeal from any judgment of theTnbunal to theSupreme Courton any ground inviting onlya question •Reportedin
(1988)lCLR 454 634 1 C.L.R. Alouet Clothing v. Athanaslou Boyadjis J . of law, by way of case stated within twenty-one days of the date of the judgment». Under paragraph
(4)of the aforesaid Rule 17 the Supreme Courtisconferred with power only todecide thelegalpointraised 5 in the case stated and return the case to the President of the Industrial Disputes Court together with its opinion thereon. The Supreme Court is not vested with jurisdiction to make its own findings of fact eithercontraryorsupplementary tothose made by the Tribunal, as we have been invited to do by counsel for the 10 appellant inthe present case. Section 7
(1)of theTerminationof EmploymentLaw, 1967, the construction of which, as made by the trial Court in conjunction with section 3, is questioned inthefirst pointstated inthe present Case Stated, read as follows: 15 *7.-{l) Where an employee lawfully terminates his employment with an employer because of the conductof the employer, then this termination shall be deemed to be terminationby theemployer withinthemeaningofsection 3.» on * 3.-
(1)Όταν, κατά ή μετά την έναρξιν της ισχύος του παρόντος άρθρου, ο εργοδότης τερματίζη δι' οιονδήποτελόγον άλλον ή των εντω άρθρω5 εκτιθεμένων λόγων, την σπασχόλησιν εργοδοτουμένου ο οποίος έχει απαοχοληθή συνεχιός υπ' αυτού επί είκοσι εξτουλάχιστον εβδομάδας, ο εργοδοτούμενος κέκτηται δικαίωμα εις αποζημίωσιν υπολογιζομένην συμφώνως προς τον Πρώτο* Πίνακα: nc. Νοείται ότι ο εργοδότης και ο εργοδοτούμενος δύνανται δι' εγγράφου συμβάσεως συναφθείσης κατά τον χρόνον της προσλήψεως , του εργοδοτουμένου να παρατείνωσι την υπό του παρόντος άρθρου προβλεπομένην περίοδον συνεχούς απασχολήσεως μέχρις ανωτάτου ορίου εκατόν τεσσάρων εβδομάδων. ΟΛ
(2)Η αποζημίωσιςεις την οποίσ δικαιούται οεργοδοτούμενος συμφώνως προς το εδάφιον (Ί) καταβάλλεται υπό του εργοδότου καθ' ον ποσόν αύτη δεν υπερβαίνει τα ημερομίσθια του εργοδοτουμένου δι' εν έτος, και εκ ιυυ Ταμείου καθ' ον ποσόν αύτη υπερβαίνει τα ημερομίσθια του εργοδοτουμένου δι' εν έτος.* Translated in English section 3 of the Law, as later amended 35 reads as follows:" «3*-(l) where, on or after the day when this section shall come intooperation, ah employer terminates for any reason other than those ser out in section 5 the employment of an employee who has been continuously employed by him for notlessthantwenty-sixweeks, the employee shall have a 635 BoyadjisJ. AlouetClothingv. Athanaslou
(1988)right tocompensation calculated inaccordance with the First Schedule:, Provided that an employer and an employee may by agreement in writing made at the time the employee enters into the employment extend the period of continuous employment provided by this section to a maximun of one hundred and four weeks. 5
(2)The compensation towhich the employee shall have a right in accordance with subsection
(1)is payable by the employer totheextentthatitdoesnotexceedthewagesofthe 10 employee for one year, and by the Fund to the extent that it exceeds the wagesof the employee for one year.» The words of both sections are clear and unambiguous. Counsel for appellant has not suggested thatthey are susceptible of any construction other than the one given to them by the tria' 15 Courtjudged from thewayinwhichitappliedbothsectionsonthe facts as it had found them. Once the trialjudge had found that(
- i)the employers had unilaterally suspended the operation of the contract of employment ofthetwoapplicants withoutpayment to them of their wages, and (
- ii)the applicants never consented to 20 such suspension, the judge wasbound to find, as he did, i.e. that the employers' aforesaid conduct amounted to a breach of fundamental terms of the contract of employment of the applicants which entitled the latter to terminate the employment under section 7
(1)of the Law and to pursue their right to 25 compensation calculated inaccordancewithsection3 oftheLaw, in thesamewayinwhich theywould havebeen entitled todohad theiremployment been terminated bytheiremployers themselves for any reason other than the reasons set out in section 5 of the Law. The suspension of the employment of the applicants resulting from theconduct ofthe employerscomplained ofcommenced on 12.9.
- Neither the fact that the applicants were making enquiriesastowhetherorwhentheywouldreturntowork,northe meeting they had withtheir employers on 10.10.1985inan effort 35 to reach an amicable settlement of their claims, nor the fact that they considered themselves as having been dismissed from their employment after the meeting in the manager' s office on 10.10.1985, nor the fact thatprior to 10.10.1985theapplicantin Application No. 465/85 found temporary employment elsewhere, 40 636 30 1 C.L.R. Alouet Clothing v.Athanaslou Boyadjis J.· changes the situation or affects in any way theirrightto claim the relief provided for in section 3 of the Law relying on the conduct oftheemployerstosuspendtheiremploymentasfrom 12.9.
- 5 10 15 20 IS 30 35 Our answer, therefore, to the first question isthat the Industrial Disputes Court rightly construed section 7
(1)of Law No. 24/6783, inconjunction with section 3 thereof. With regard now to the second question stated in the present Case Stated, our answer to it isin the negative. Counsel for the appellant conceded that thequestion whetherthe employmentof the applicants was terminated for reasons of redundancy under section 18 ol the Law was never properly before the Industrial Disputes Court which was at no stage ever asked by either litiganttoconsidersuchamatter.Inordertoqualifyashavingbeen terminated under section 18, an employment must, in the first place,beterminated bytheemployerwhomustnotify theMinister ofany proposed redundancy undersection 21 bygivingas much advancenoticeaspracticable,somethingthattheemployersinthe present case have not done. On the contrary their version at the trial was always that they never terminated for any reason hV applicant' s employment who left their employment voluntarily for reasons of their own. Furthermore, the Court has made a finding that, although in view of the reason of lack of credit facilities alleged bythe employers intheirnotice dated 11.9.1985 suspending the applicants' employment, the latter suggested to the employers' manager at their meeting of 10.10.1985 to terminate their employment a s ' redundant so as to claim compensation from the Redundancy Fund, the manager refused to do so. In view of all the above the employers are now completely unjustified in their complaint against the omission of the Industrial Disputes Court to consider on itsown motion, after iheirrulingthatthetermination oftheapplicants' employment fell undersection 7
(1),whethersuch termination fellundersection
- simplybecause ithad before itthe noticedated 11.9.1985 where an allegation was made as to the reason why the employers proposed to suspend the applicants' employment as from 12:9.1985 onwards, and despite the express refusal of the employers to consider terminating their employment as redundant as requested by the applicants on 10.10.
- What we stated hereinabove constitutes our answer to the two 637 Boyadjis J. Alouet Clothing v. Athanaslou
(1988)questions posed and we remit the case back to the Industrial Disputes Court for the necessary action. In fact our answers amount toa confirmation of itsdecision. Forallthe above reasons theappeal isdismissed with costs. Appeal dismissed withcosts. 638