Andrew Smith v Paradise Breezes Company Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 05 October 2012
• Docket Number: IT/NES/1581/11

Between:

Andrew Smith

Applicant

and

Paradise Breezes Company Limited

1 ^st Respondent

T/A Seahorse Sailing Adventure

2 ^nd Respondent

Before:

HIS HONOUR Keith H. Thompson

IT/NES/1581/11

INDUSTRIAL TRIBUNAL

New Providence

APPEARANCES:

Mr. Edward Turner, Counsel for the Applicant

No appearance by or on behalf of the Respondent

DECISION

1 This matter was set down for hearing on the 23 ^rd July, 2012. Both parties were duly served. However, the initial Respondent, Paradise Breezes Company Limited did not appear and the Applicant via his attorney made an Application for Joinder pursuant to section 59(1), (b), (ii) of the Industrial Relations Act Chapter 321 and Rule 16(1) of the Industrial Relations (Tribunal Procedure) Rules 2010 which state respectively;

59 (1), (b), (ii) In addition to the powers conferred on it under the foregoing provisions of this Act, the Tribunal may: “who in any other case the Tribunal considers it just to be joined as a party, to be joined as a party to the proceedings under consideration on such terms and conditions as the Tribunal may direct”.

Section 16 (1) The Tribunal may at any time on the application of any person made by Notice to the Secretary 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”.

There is also section 65 (2) and (3) which state respectively:

Section 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.

(3) For the purposes of this section, any question whether a person is the agent of the employer or the successor to or an assignee of another shall be determined by the Tribunal from all the circumstances in accordance with good conscience and the Code of Industrial Relations Practice and shall be binding on the persons referred to in subsection (1) and is conclusive for all purposes connected with the order or award.”

2 Further, the Respondent not appearing despite being duly served, the Tribunal proceeded in their absence pursuant to Section 59 (1), (a) which reads as follows:

Section 59 (1), In addition to the powers conferred on it under the foregoing provisions of this Act, the Tribunal may —

(a) Proceed to hear and determine any question arising in connection with a dispute in the absence of any party who has been duly summoned to appear before the Tribunal and has failed to do so.”

3 The Applicant was sworn in and his evidence is as follows:

The Applicant worked as a boat captain. According to him he was approached in 1999 to go to the British Virgin Islands to pick up the first boat for the Respondents and sail it back to the Bahamas. Before he left the Bahamas, they signed an agreement for the full employment of the Applicant with the Respondents which he signed. The Applicant was then referred to Tab 1 to a document which he identified as his contract of employment. The document was entered into evidence as exhibit “A.S. 1”.

4 The Applicant set out his duties as captain as taking the ship from point A to point B, to make sure the passengers are safe, take passengers to the snorkeling grounds and to give them instructions not to touch the coral reefs. He usually carried four crew members. He named them as Richie, a female, Michael Albury and Prince Albury, Renaldo Clarke and Chris.

5 According to the Applicant, the males would go into the water with the tourists and when they were on board they would hoist the sails on the boat. The Applicant says he never handled any money, he was never responsible for the money or the collection of it. The Applicant went on to explain that if on any given day they had a light number of tourists from the head office, they would go to the boat and the crew would collect the money at the dock. Either one Beverley or Ms. Williams would provide the paper work. Cruise ship passengers would be issued tickets for the tour.

6 As it relates to the tickets once the cruise ship sells the tickets to the cruise passengers and they present them to the Respondent's boat, only Michael Albury and Prince Albury would collect those tickets and one of them would then go to the ship to cash those' tickets in. According to the Applicant, he never had any contact with the cruise ship. No money, passed through the Applicant's hands. When asked about the head count on the tours, the Applicant's evidence is that the Albury brothers would deal with that because he as the captain always had to be at the wheel to keep the boat steady because they had a few incidents where passengers fell into the water between the boat and the dock. Under the circumstances, he could only accept the head count number given to him by the crew.

7 The tours would last for about three hours according to the' Applicant, one hour going, one hour snorkeling and one hour returning to the dock. The Applicant did not do any paper work for the tours. The manifest for each tour would be prepared by the. office. When the Applicant was terminated, he was earning $800.00 per...