Andre Cherisme v Montagu Motors

• Jurisdiction: Bahamas
• Judge: Keith H. Thompson
• Judgment Date: 27 September 2013
• Docket Number: IT/NES/1397/10
• Court: Industrial Court (Bahamas)

Between:

Andre Cherisme

Applicant

and

Montagu Motors

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1397/10

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Applicant in Person

Christina A. Galanos of Counsel for the Respondent

DECISION

1 The Applicant commenced employment with Mr. Brent Fox at Fox Apartments in 1988 and he worked from 8:00 a.m. to 3:00 p.m. and at Water Polo Restaurant from 4:00 p.m. to 11:00 p.m. Sometime later, Mr. Fox started Montagu Motors after Water Polo Restaurant closed. When the restaurant closed everyone got paid except the Applicant. The Applicant started at the restaurant in 1992.

2 The Applicant subsequently started working for another one of Mr. Fox's companies, Big Island distributor. This company purchased items from Cuba to make souvenirs. In 2003. Mr. Fox started Montagu Motors. It is the further evidence of the Applicant that the licencing authority didn't want to give Mr. Fox a licence because they said Village Road was residential. He subsequently obtained the licence. According to the Applicant, from 1988 to 2003 Mr. Fox never paid National Insurance contributions for the Applicant. In 2002 the Applicant says that Mr. Fox started acting funny with him. In 2009 on the 9 ^th September the Applicant was supposed to go to the hospital for a test. He was supposed to be finished by 8:00 a.m. however, the Applicant arrived at work at 9:15 a.m.

3 When the Applicant arrived, he saw Mr. Fox going out the gate as he was coming in. He went to the office to get some joy detergent to do something. The secretary was in the front and when he went into the office she passed him the phone. It was Mr. Fox on the line and he told the Applicant no work today. The Applicant went home. When he returned to work the following day which was a Wednesday Mr. Fox was already in the yard but he didn't open the gates until 9:00 a.m. When the Applicant started to go in, Mr. Fox told him again, no work today. The Applicant went home.

4 On Thursday when the Applicant went to work he met another fellow outside. When Mr. Fox opened the gate he let the other fellow in but he told the Applicant no work today. The Applicant told Mr. Fox he wasn't going home because he hired someone in his place and he had to tell him something. Mr. Fox told him he had nothing to tell him. The Applicant then told him that if he didn't have anything to tell him he was going to start his work. Mr. Fox told him to come back the following day at 11:00 a.m. for a letter. On the following day, the Applicant was given a letter but the Applicant wasn't paid anything. The letter said that since the Applicant was with Mr. Fox for such a long time he could work in the yard and do some maintenance like painting in the apartments. The Applicant went back on the following Monday but was again told no work today so the Applicant went home. On Tuesday morning when the Applicant went back, Mr. Fox had rehired another Haitian National he had tired previously. The Applicant then went to the labour board. At the Department of Labour, he saw Ms. Dorothy Godet and showed her the letter. After reading the letter, she told the Applicant that he wasn't fired and he should go back to work. When the Applicant went back to work Mr. Fox told him the same thing, no work today. The Applicant went back to Ms. Godet and told her what happened.

5 The Applicant was given two forms to fill out and take back to Ms. Godet the next day. Before filling in the forms the Applicant went back to work but was told the same thing by Mr. Fox, no work today. The Applicant went back to Ms. Godet and she kept one form. She told him to go back to work and if Mr. Fox didn't let him work he should give him the copy he had and to let her know when he gives it to Mr. Fox. She also told him to come back so that he could get an appointment because they had to send papers to Mr. Fox and the Applicant would have to pick them up. Mr. Fox came to the first meeting and Ms. Thurston was the conciliator. She asked the Applicant to see the letter and after looking at it, she said that they didn't fire him. However, Mr. Fox told Ms. Thurston that he didn't want the Applicant working in his place anymore. He told her that the Applicant had left the job before for about six (6) to eight (8) months. She asked him when and he said he couldn't remember but he had some employees who could testify to that. She told him to go to National Insurance and check the record and he would be able to see. He did tell her that he did not pay National Insurance before the Applicant left.

6 In 1998, the Applicant says that Mr. Fox asked him to go to Haiti to bring someone back to fix his yard with obeah. They asked him for two zombies and he gave them the Applicant's name and the name of one Jeffrey. In 2002, Jeffrey died. Jeffrey was an American. The Applicant was in the yard when Jeffrey died and Mr. Fox asked him to leave. The Applicant used to live on the premises since 1992. The Applicant was looking for a place but couldn't find one.

7 It is the Applicant's further evidence that Mr. Fox told him that his wife Lilly went to the obeah man and the obeah man told her that Mr. Fox wanted to kill Vanessa his daughter. Mr. Fox didn't have any friends he only had the Applicant and Jeffrey. The Applicant says he took care of Mr. Fox's yard and his mother's yard. One day Mr. Fox's mother asked the Applicant to find her a maid to iron her clothes. The Applicant ironed her pants and she said ok you can work inside and outside. He did the additional work for the same pay. Vanessa told Mr. Fox that Lilly wanted to put magic on him. Vanessa came to live with him and she died in 2002. The Applicant was being paid $300.00 per week. Before Montagu Motors the Applicant was paid in cash. When he started with Montagu Motors he was paid by cheque. The Applicant worked for a total of some twenty-one (21) years for Mr. Fox. May, 1988 to September, 2009. At the time of giving evidence the Applicant was 67 years of age. We must add that we have no doubt that the Applicant worked for the Respondent as the Applicant has supplied the Tribunal with any number of applications for initially a work permit and thereafter a series of renewals and ultimately the Applicant received his permanent residency.

8 Upon checking at National Insurance, the Applicant received a letter notifying him that he didn't have sufficient contributions to get full old age pension. The Applicant received a lump sum of $10,000.00. The court of its own motion pursuant to Section 65 (2) of the Industrial Relations Act Chapter 321 and Section 16 (1) of the Industrial Relations (Tribunal Procedures) Rules 2010 joined Montague Motors Limited, Brent L. Fox and Yilka Fox.

THE LAW:

9 The perusal of our file shows that the Respondent retained the firm of Lockhart & Company. The Tribunal received a letter dated the 26 ^th February, 2010 informing the Tribunal that Lockhart & Co. was instructed to act for the Respondent. The letter also advised of the enclosure in the letter of the completed Form D “Notice of Appearance. A later letter from Lockhart & Co. dated the 23 ^rd March, 2010 to the Tribunal enclosed the Form E “Defence”. The Form J “Notice of Hearing”, was served on Lockhart & Co. on the 8 ^th April, 2013 and was signed for by one L. Carey. It was served at No. 35 Buen Retiro Road. We go through this series of events because the Respondent nor its attorney presented themselves for the hearing, which commenced on the 23 ^rd May, 2013. The Respondent was properly served. For the avoidance of doubt, we set out the acknowledgement of receipt below:

10 The Respondent having been properly served, the court proceeded in the absence of the Respondent pursuant to Section 59(1), (a) of the Act. Due also to the fact that the Respondent nor its attorney presented themselves for the hearing, the Tribunal of its own motion joined Montagu Motors Limited, Brent L. Fox and Yilka Fox pursuant to Section 65(2) of the Industrial Relations Act (“The Act”) and Section (16) (1) of the Industrial Relations (Tribunal Procedure) Rules 2010 respectively. We set out those two sections below:

s.65(2) “The Tribunal may, during the course of any dispute pending before it direct that any agents of the employer or any successors to or any assignees of, the business of the employer who is a party to the dispute shall be joined or substituted as a party to the dispute, and any order or award of the Tribunal in such dispute (whenever made) shall, save to the extent that it is otherwise expressly provided in such order or award, be binding on the successors or assignees of the employer.”

s.16(1) “The Tribunal may at any time on the application of any person made by Notice to the Security in Form M in the Schedule or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.”

11 The Applicant's claim is for wrongful dismissal. However, there are some other issues which require...