Alpheus McKenzie v Harry B. Sands, Lobosky & Company

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 03 October 2013
• Docket Number: IT/NES/1713/12

Between:

Alpheus McKenzie

Applicant

and

Harry B. Sands, Lobosky & Company

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1713/12

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. E. Raphael Moxey of Counsel for the Applicant

Ms. Camille Cleare along with Mr. Adrian Hunt of Counsel for the Respondent

DECISION

1 This matter was initially scheduled to be heard on the 28 ^th and 29 ^th January, 2013. Certain applications were made including one for discovery and an order was granted. On February 6 ^th, 2013 another hearing was held to ensure that the order was complied with, filed and served by the close of business on the 7 ^th February, 2013. Both parties exchanged documentation as set out in the order. The order is set out below:

“COMMONWEALTH OF THE BAHAMAS

IT/NES/1713 of 2012

INDUSTRIAL TRIBUNAL

New Providence

BETWEEN:

ALPHEUS McKENZIE

APPLICANT

VS.

HARRY B. SANDS, LOBOSKY & COMPANY

RESPONDENT

ORDER

Dated the day of A.D., 2013.

IN CHAMBERS BEFORE HIS HONOUR KEITH H. THOMPSON, VICE-PRESIDENT OF THE INDUSTRIAL TRIBUNAL OF THE COMMONWEALTH OF THE BAHAMAS.

UPON THE HEARING OF the Notice for attendance as a witness and production of documents at hearing on the 6 ^th day of February, A.D., 2013;

AND UPON HEARING Mr. E. Raphael Moxey of Counsel for the Applicant and Ms. Camille Cleare along with Mr. Adrian Hunt of Counsels for the Respondent.

IT IS HEREBY ORDERED:-

• 1. That Mr. Charles Mackay, of the Law firm of Mackay & Moxey, Shirlaw House, Shirley Street, Nassau, Bahamas, do attend to give evidence in the above matter at the Industrial Tribunal on the 6 ^th day of March A.D., 2013 at 10:00 o'clock A.M. and at any adjourned hearing of the proceedings and to produce the following documents for inspection at the Industrial Tribunal, Monument Plaza, Thompson Boulevard on the 1 ^st day of March, A.D., 2013 between the hours of 10:00 A.M. and 3:00 P.M. and that the Applicant and his attorney be at liberty to inspect and peruse the documents so produced and to take copies and extracts therefrom at the Applicant's expense:

  • a. The document delivery records of the said law firm from the period of January, 2005 to July, 2008;

  • b. The financial records of the said law firm relating to any and all payments to the above-named Applicant for the aforementioned period; and

  • c. Any and all affidavits sworn to by the Applicant and filed by or on behalf of the said law firm in the Supreme Court Registry of the Commonwealth of The Bahamas.

• 2. Mr. Branville McCartney, of the law firm of Halsbury Chambers, Village Road North, Nassau, Bahamas, do attend to give evidence in the above matter at the Industrial Tribunal on the 6 ^th day of March, A.D., 2013 at 10:00 o'clock A.M., and any adjourned hearing of the proceedings and to produce the following documents for inspection at the Industrial Tribunal, Monument Plaza, Thompson Boulevard on the 1 ^st day of March, A.D., 2013 between the hours of 10:00 A.M. and 3:00 P.M. and that the Applicant's attorney be at liberty to inspect and peruse the documents so produced and to take copies and extracts therefrom at the Applicant's expense.;

  • a. The document delivery records of the said law firm from the period of January 2005 to July 2008;

  • b. The financial records of the said law firm relating to any and all payments to the above-named Applicant for the aforementioned period; and

  • c. Any and all affidavits sworn to by the Applicant, and filed by or on behalf of the said law firm in the Supreme Court Registry of the Commonwealth of the Bahamas.

• 3. Mr. Alexander B. Ferguson, of the law firm of Dunmore Chambers, 4 Village Gardens, Nassau, Bahamas do attend to give evidence in the above matter at the Industrial Tribunal on the 6 ^th day of March A.D., 2013 at 10:00 O'clock A.M. and at any adjourned hearing of the proceedings and to produce the following documents for inspection at the Industrial Tribunal, Monument Plaza, Thompson Boulevard from the 1 ^st day of March, 2013 between the hours of 10:00 A.M. and 3:00 P.M. and that the Applicant and his attorney be at liberty to inspect and peruse the documents so produced and to take copies and extracts therefrom at the Applicant's expense.

  • a. The document delivery records of the said law firm from the period of January, 2005 to July, 2008;

  • b. The financial records of the said law firm relating to any and all payments to the above-named Applicant for the aforementioned period; and

  • c. Any and all affidavits sworn to by the Applicant, and filed by or on behalf of the said law firm in the Supreme Court Registry of the Commonwealth of the Bahamas.

IT IS FURTHER ORDERED:

That the Respondent produces for inspection at the office of the Industrial Tribunal, Monument Plaza, Thompson Boulevard, Nassau, Bahamas the following documents for inspection on the 1 ^st day of March, A.D., 2013, between the hours of 10:00 A.M. and 3:00 P.M. and that the Applicant and his attorney be at liberty to inspect and peruse the documents so produced and to take copies and extracts therefrom at the Applicant's expense:

• 1. The personnel file of the Applicant kept by the Respondent; and

• 2. The delivery log (s) compiled by the Applicant for the years while in the employment of the Respondent and that the Applicant and his attorneys be at liberty to inspect and peruse the documents so produced and to take copies and extracts therefrom at the Applicant's expense.

IT IS FURTHER ORDERED:

• 1. That Mr. Arthur Seligman, former partner in the Respondent Company and now of the firm of Lennox Patton, Fort Nassau Centre, Marlborough Street, do attend to give evidence in the matter at the Industrial Tribunal on 6 ^th day of March, A.D., 2013 at 10:00 o'clock in the forenoon and any adjourned hearing of the proceedings; and

• 2. Ms. Giselle M. Pyfrom, former partner in the Respondent Company and now of Kerzner International Bahamas Ltd., Paradise Island, Bahamas, do attend to give evidence in the matter at the Industrial Tribunal on the 6 ^th day of March, A.D., 2013, at 10:00 A.M. in the forenoon and at any adjourned hearing of the proceedings.

BY ORDER OF THE INDUSTRIAL TRIBUNAL.

Keith H. Thompson

Vice-President”

2 On March 6 ^th and 7 ^th, 2013 full trial commenced. The Applicant was the first witness called.

EVIDENCE OF THE APPLICANT:

3 The Applicant commenced employment with the Respondent in 1996 and was terminated on July 8 ^th, 2008. The Applicant worked for the Respondent for approximately twelve (12) years. At the time of termination he was earning $375.00 per week. His duties included messenger services, filing and serving documents. The Applicant got around by the use of the Respondent's vehicle. Initially he used his own vehicle but sometime in 1999 or 2000 the Respondent purchased a vehicle. The Applicant explained that he would report to work at 9:00 a.m. and leave at 9:30 a.m. He would return at 12:30 p.m. and leave at 2:45 p.m. for the evening run. The Applicant therefore collected work from the Respondent three times a day. He was not the only person doing this. There was a lady who is now deceased by the name of Jennifer Ferguson who also made deliveries in the downtown area. All deliveries were logged. The Applicant was shown the log book which he identified as being “the” log book.

4 The Applicant's further evidence is that during the time he worked for the Respondent, he made deliveries for other firms and he started that from 1999. He identified some of them as Giselle Pyfrom, of Sun International, Branville McCartney of Halsbury Chambers, Alexander Ferguson of Dunmore Chambers and McKay and Moxey. However, he was not an employee of those firms but was paid for the deliveries. The Applicant explained how he came to make deliveries for those firms. He said that when he would go to deliver the Respondent's documents, they would ask him if he was going out west for example and if he was he would say yes and they then asked him to deliver the documents for them at the same time. His normal work day at the Respondent was from 9:00 a.m. to 5:00 p.m. He did not take a lunch break. He also filed documents for the other firms and sometimes served documents for them. As a part of this process he would also have to swear Affidavits of Service for them.

5 Two Affidavits of Service were put to the Applicant and he identified his signature. He also identified the signatures of the notaries public as being in the first instance Shenique Pratt, a Partner of the Respondent at the time and Arthur Seligmen another Partner of the Respondent. These two Affidavits were notarized on the 20 ^th February, 2006 and the 13 ^th August, 2007. The Affidavit notarized on the 20 ^th February 2006 was notarized by Arthur Seligman and the 13 August, 2007 Affidavit was notarized by Shenique Pratt. At the time however, Mr. Seligman was an Equity Partner and Ms. Pratt was an Associate.

6 The Applicant's further evidence is that some of the other partners knew he was making deliveries for other firms and at no time was he ever warned to cease and desist from doing so. In fact, the Applicant says that none of the partners had ever complained about his work and neither did anyone in administration. In fact, the Applicant says that he received an appreciation card for his performance. The Applicant is seeking from the Tribunal an award of money. The Applicant went on to explain that when he went into work on the 8 July, 2008 Mr. Ferron Bethell and Mrs. Lobosky called him into the office and showed him an affidavit he had sworn for Mackay & Moxey and gave him a termination letter with a cheque. He was not owed any vacation however, he was not paid any money for his termination.

7 The Applicant's further evidence is that he was a member of the Respondent's medical plan and contributed to it. He recalled the cheque he had received from the Respondent as being in the amount of $2,000.00. He did not seek employment after his...