SCANSHIP (LIBERIA) LTD. thru its General Manager, Appellant, v. JOSEPH SEBLEH, et al, Appellees.

APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: March 23, 1983. Decided: July 6, 1983.

1. In hearings before a labour hearing officer, the announcement of an exception to a ruling of the hearing officer serves as a supersedeas and stays the execution of the judgment.

2. Exceptions taken during a hearing which are not included in a bill of exceptions are deemed waived and cannot be argued on appeal before the Supreme Court.

3. In a labor action, the inclusion of similarly situated employees in a final judgment although they were not original complainants, is not sufficient to merit a reversal of a lower court’s ruling where the facts reveal a gross violation on the part of the appellant

4. The statement of an opinion of a judge included in his ruling does not warrant the setting aside of a lower court’s ruling where the opinion does not form a part of the judgment.

The complainants, now appellees, were employees of the appellant’s company and were declared redundant due to alleged financial constraints. The letters of termination promised treatment under the doctrine which required redundant employees to be given first preference in re-employment when financial conditions improved. Subsequent thereto, the appellant employed several new employees, to the exclusion of the employees who had been declared redundant. The redundant therefor filed a complaint with the Ministry of Labour, claiming unfair labour practice. The hearing officer ruled that the employees did not have legitimate claims and he therefore dismissed the complaint. On appeal, the Board of general Appeals reversed the ruling of the hearing officer and ordered that the appellees be paid certain amounts by the appellant. From this decision of the Board, an appeal was taken to the Circuit Court for the Sixth Judicial Circuit, Montserrado County. The circuit court, being satisfied that the appellant had acted improperly, confirmed the decision of the Board. It was from this judgment of the circuit court that a further appeal was taken to the Supreme Court.

The Supreme Court, upon a review of the case, agreed with the lower court that the appellant had in fact employed new employees subsequent to the redundancy exercise and held that the action violated the policy governing redundancy. Accordingly, the Supreme Court affirmed the ruling of the lower court rendered in favour of the appellees.
J D. Gordon appeared for appellant. David A. B. Jallah and E. Winfred Smallwood appeared for appellees.

MR. JUSTICE MORRIS delivered the opinion of the Court.

The complainants now appellees were employees of the appellant company and were declared redundant on the 9th day of December, 1980 because of what the appellant termed financial constraint. The appellees allegedly received one month salary in lieu of notice. They were also allegedly paid for the time they worked in December. It was argued before us by counsel for appellees that the letter declaring appellees redundant expressively provided that consideration would be given the appellees for re-employment whenever the appellant’s business improved. The appellees contended that the appellant acted contrary to the said letter and the provisions of the union/management contract as well as the universally accepted labour standards, when it failed to undertake the requisite negotiation with the union and that the doctrine was violated by the appellant company. They also argued that the appellant had employed five persons prior to the expiration of one year since they were declared redundant and these employees were doing similar jobs previously performed by them without giving them the preference as provided by the union/management contract.

Consequently, the appellees filed a complaint against the appellant company with the Ministry of Labor. The hearing officer who first investigated the case ruled that the appellees were only entitled to twenty-one (21) days wages representing payment for the pay period in which the appellees services were redundant. He dismissed the appellees’ claim on the ground that the appellant never engaged any worker to substitute any of the redundant employees. Appellees appealed to the Board of General Appeals which in turn reversed the ruling of the hearing officer and held that four of the twenty-eight complainants, now appellees, did not qualify to benefit under the principle of firstin-last-out in redundancy matters, since there is no evidence from the records that there are still people working for appellant company in the areas of their employment who, were employed Subsequently to them. The four employees affected are:

1. Zinnah Zia zoo, Maintenance Man
2. James Tangbo, Radio Operator
3. David Brown, Tracer
4. Thomas Gibson, Debt Collector.

The Board held that the remaining twenty-four complainants/ appellees are entitled to two months wages each or reinstatement because there were some persons in the employ of the appellant company who were employed subsequent to those persons declared redundant and are performing duties similar to those performed by the redundant employees. In the opinion of the Board, this action of the appellant was a gross violation of the principle of first-in-last-out, which the Board maintained is a prerequisite to the implementation of any redundancy scheme. The Board, however, ruled that the twenty-eight complainants/ appellees are entitled to receive 18 days pay each as per section 9 (ii) & (ii) and section 15083 of the Labor Practices Law, respectively. The appellant appealed from the ruling of the Board of General Appeals to the People’s Sixth Judicial Circuit Court for a judicial review. After arguments by counsel on both sides, the judge confirmed and affirmed the ruling of the Board of General Appeals and the appellant again appealed to this Court on a seven-count bill of exceptions. We shall deal with the bill of exceptions in the ascending order:
“BILL OF EXCEPTIONS

“1. Because appellant says that Your Honour committed a reversible error when you confirmed the decision of the Board of General Appeals which decision is not supported by the records of the hearing officer. Appellant submits that the records at the initial hearing showed no evidence of new employment made by appellant after the redundancy scheme. Your Honour therefore erroneously ruled when you awarded the appellees two (2) months’ salary each.

2. Because appellant says that Your Honour’s final judgment deviated from the complaint filed by the appellees in the Ministry of Labor. The appellees mentioned only five (5) persons who were allegedly employed after they were redundant. The appellant is at a state of quandary to know where Your Honour got additional three (3) names from Courts of justice are only to concern themselves with matters particularly raised in the pleadings and not to sua sponte insert matters not raised by the parties. Your Honour therefore committed reversible error when you added three (3) additional names as having been allegedly employed by appellant after the redundancy scheme.

4. Because appellant says that although the records of the hearing officer revealed that the five (5) persons mentioned in appellees’ complaint were not performing the same job that the redundant employees were doing, yet, Your Honour overlooked this salient issue and erroneously awarded the redundant employees two (2) months’ salary each, when it is shown that Taylor was employed because of his academic, professional and technical qualifications, a training which none of the redundant appellees possess, three were casuals and the other filling a vacancy created by the dismissal of one Fahnbulleh who was found drunk on the job. This was no new employment created as stated in Your Honour’s final judgment.

6. Because appellant says no subsequent employment was made by appellant as shown from the employment records. Consequently, Your Honor’s final judgment not being supported by the records of the hearing officer, the same should be reversed.”

These four counts of the bill of exceptions are inconsistent and contradictory in that appellant categorically denied in counts one and six any evidence of new employment as per the record from the hearing officer of the Ministry of Labor, yet, in count two it contended that the plaintiffs’ complaint mentioned of only five persons as being allegedly employed after the plaintiffs were declared redundant and the judge sua sponte added three additional persons making the total eight. Therefore, the judge committed a reversible error. In count three, appellant says that the records of the hearing officer revealed that the five persons mentioned in appellees’ complaint were not performing the same job which the redundant employees were doing and therefore it was erroneous for the judge to have awarded the redundant employees two months’ salary each. Appellant emphatically denied the fact that the records ever reveal any subsequent employment after the redundancy in counts one and six, yet, in count four the appellant mentioned the subsequent employment of one Freddie R. Taylor, Jr., as a technical man, one Varney Sambola as clerk/typist to fill the vacancy created by the dismissal of one Fahnbulleh who was found drunk on the job and three casual workers.

The records before us revealed that some of those redundant were packers doing the same jobs performed by the three alleged casual workers and one was a clerk/typist, the position for which G. Varney Sambola, the clerk/typist, was employed. The five redundant employees who were packers and the one clerk/typist are:

NAME YEAR EMPLOYED SALARY

1. John Tue 1965 $253.00

2. Matthew Broh 1965 253.00

3. Thomas Holmes 1973 228.00

4. James Flomo 1966 253.00

5. Joe Nagbe 1973 228.00

6. Doe Tequoi 1973 (clerk typist) 225.00
We quote paragraphs 2, 3, 4, 5 and 6 of the hearing officer’s ruling:

“The records also show that the complainants were served notice of redundancy on December 9, 1980, terminated the same day, and paid only nine (9) days in said month. It is the opinion of this investigation that because complainants were dismissed within the pay period, they are entitled to 21 days of their wages for December, 1980.

The records further show that defendant, on March 31, 1981, employed Mr. Varnie Sambola as clerk/typist in the typing pool of Scanship at a monthly salary of $150.00 to fill a vacancy created by the dismissal of Employee Momolu Fahnbulleh because of drunkenness. The records are void of any evidence that Varnie Sambola is serving as invoicing clerk in the shipping department and that he has substituted any of the redundant employees.

The records, however, show that Freddie R. Taylor, II, a 1975 graduate of the University of Liberia with a (BA) Bachelor of Business Administration was on May 1, 1981 employed by defendant as Junior Liaison Officer with a monthly salary of $550.00 in charge of 3 out stations and responsible for export of logs.

The records are succinct and crystal clear that Mr. Taylor is not substituting and/or discharging duties previously performed by any of the complainants and that he was employed because of his professional knowledge and qualification in the field of business administration.

The records finally show that defendant also engaged the services of three (3) casual laborers on a day to day basis and that none of the complainant’s served defendant in said category and are therefore not substituting complainants as alleged.

The contentions of the appellant in counts one, two, four and six of the bill of exceptions cannot be conceded in view of the above quotation and are therefore overruled because the appel lant did employ persons to do similar jobs previously performed by some of the redundant employees in violation of the union/ management contract.

“3. Because appellant says that the appellees were redundant and paid in keeping with the redundancy policy enunciated by the Ministry of Labor. The hearing officer discovered at the hearing that appellant only paid the redundant employees nine (9) days in December of 1980 when they should have been paid for the entire month of December, which payment would constitute one month pay in lieu of notice. For this error committed by appellant, the hearing officer ruled that the remaining twenty-one (21) days in December 1980 should be paid and this was done. Therefore, appellant committed no violation of the Labor Laws as stated in Your Honour’s final judgment.”

This count of the bill of exceptions violates the statute on appeal, which provides that:

On announcement of an appeal by a defendant, no execution shall issue on a judgment against him nor shall any proceedings be taken for its enforcement until final judgment is rendered, except that on an appeal from an order dissolving an order granting a preliminary injunction, such preliminary injunction shall be in force pending decision on the appeal.” Civil Procedures Law, Rev. Code 1:51.20.

The appellees having excepted to the ruling of the hearing officer and announced an appeal therefrom, the appeal was a supersedeas and stayed the execution of the judgment. Therefore, no proceedings to enforce the judgment should have been taken either by the hearing officer or any of the parties. Hence, count three is not sustained. Sodatonou v. Bank of Liberia, [1971] LRSC 69; 20 LLR 512,(1971) and Lloyd v. Rolland, [1974] LRSC 70; 23 LLR 421, (1974).

“5. Because appellant says that if it was true that appellant did employ eight (8) persons as mentioned in Your Honor’s final judgment, it would only be those eight (8) persons that were allegedly affected that would be entitled to claim compensation from appellant and not the other sixteen (16) former employees who were awarded two months’ salary each. Therefore, Your Honour was without legal authority to have awarded the other sixteen (16) two months’ salary each when their area of work was not affected.”

In its ruling, the Board of General Appeals listed the names of fourteen (14) employees employed by the appellant company subsequent to those persons declared redundant and who, are still in the employ of the appellant performing duties similar to those performed by the redundant employees. This, the Board of General Appeals held, grossly violated the policy of first-in- last out which it claimed is a prerequisite to the implementation of any redundancy scheme. Predicated upon the violation of the principle of first-in-last-out, and the union management agreement contract dated March 1, 1980, Article XV (a) which stipulates that, “when subsequent new employment arises within one year from the date of redundancy, persons previously so terminated shall be considered for re-employment on a preferential and length of service basis, provided their qualifications, skills and ability to assume the vacant jobs are established; in no case shall a redundant employee be substituted by a new employee, provided the redundant employee is available and presents himself for employment upon due notification of the employer, should Government intervention drastically restrict or prevent the company from its operations or part thereof, this article shall become null and void,” and the failure of the appellant to give sufficient notice to the appellees, the Board of General Appeals held that twenty-four of the twenty-eight redundant employees be paid two months’ salary each and the twenty-eight of them be paid eighteen days wages each. The judge, after entertaining arguments from both counsel on the petition for judicial review and the resistence, confirmed and affirmed the Ruling of the Board of General Appeals.

Counsel for appellant argued that the Board of General Appeals sua sponte raised the principle of first-in-last-out which was never raised before the hearing officer at the initial investigation. The Board of General Appeals decided this issue in its ruling and appellants counsel attacked it in count one of his petition for judicial review. Counsel for appellees refuted said count one of the petition. After arguments pro et con, the judge affirmed the ruling of the Board of General Appeals to which final judgment appellant excepted and appealed therefrom; yet, it did not include this aspect of the ruling and judgment in its bill of exceptions. Exceptions taken and not included in the bill of exceptions are deemed waived; further, the Supreme Court will not review issues where no exceptions were taken in the lower court, or consider an issue not included in the bill of exceptions even though excepted to. Ledlow and Maloney v. Republic, 2LLR 569, 570 (1926); Torkor and Teethe v. Republic 6LLR 88 (1937); Richards v. Coleman, [1938] LRSC 15; 6 LLR 285 (1938); Francis v. Mesurado Fishing Company, Ltd, [1971] LRSC 99; 20 LLR 542 (1971); Monrovia Construction Corporation v. Wazani, [1974] LRSC 26; 23 LLR 58 (1974) and Cooper v. Davis, [1978] LRSC 57; 27 LLR 310 (1978).

Our statute defines a bill of exceptions as a specification of the exceptions made to the judgment, decision, order, ruling, or other matter excepted to during the trial and relied upon for the appeal together with a statement of the basis of the exceptions. Civil Procedure Law, Rev. Code 1:51.7. If appellant intended for this Court to review this aspect of the judge’s ruling, it would have included same in the bill of exceptions. We, however, observe from the records that counsel for appellant raised this identical issue in the first count of his petition for judicial review and counsel for appellees traversed said count in count one of his returns and proferted copy of a letter, written to Francis S. Wisseh, the hearing officer, dated December 22, 1981 as Exhibit “A”. We quote the second paragraph of said letter which we feel clearly raises the issue of first-in-last-out:

“From our review of the records, our position has been further substantiated as regard management’s violation of the redundancy policy in various respects. As has always been argued by us, the policy of first-in- last out (FILO) was not adhered to and more than that, even after the purported redundancy scheme had been carried out, the management of Scanship continued to violate our Labor Laws and Practices by re-employing within one year without reference to those declared redundant as is required.”

The principle of first-in- last-out was raised by appellees’ counsel before the hearing officer as revealed from the above quotation. The addition of three names to the five persons employed by the respondent judge standing alone is not sufficient to reverse the judgment of the lower court, since the union/management contract was breached, and the principle of first-in- last-out grossly violated. The Judge rightly affirmed the ruling of the Board of General Appeals in awarding twenty-four of the twenty eight complainants/appellees two months’ salary each because the board in its ruling had already excluded those (4 in all) who were not entitled to benefit from the redundancy, because their areas of work were not affected as mentioned, supra. Count five is therefore not sustained.

Count seven attacks the judge for not exemplifying that cool neutrality of a judge because the judge said in his final judgment that the act of the appellant reminds him of a Supreme Court decision which says that foreign employers in this country are in the habit of breaking, meaning mining the Liberian employees, when such employees begin to get higher salary, and replacing them with new arms starting those new arms with a bottom salary. This expression in our opinion does not warrant the setting aside of the lower court’s judgment. Count seven is therefore not conceded.

In view of all what we have narrated and the laws cited, it is our considered opinion that the judgment of the court below ought to be and the same is hereby affirmed and confirmed. And it is hereby so ordered.

Judgment affirmed.