Anthony Rahming v Grand Bahama Power Company Ltd

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Longley, P.
Judgment Date21 June 2018
Neutral CitationBS 2018 CA 91
Date21 June 2018
Docket NumberSCCivApp. No. 177 of 2017

IN THE COURT OF APPEAL

Longley, P.; Isaacs, J.A.; Crane-Scott, J.A.

SCCivApp. No. 177 of 2017

Anthony Rahming
and
Grand Bahama Power Company Ltd.
Appearances:

Mr. Obie Ferguson, Counsel for the appellant.

Mr. Robert Adams with Mr. Edward Marshall, Counsel for the respondent.

Duran Cunningham v. Bahamar Development Company Limited SCCivApp. No. 116 of 2010 considered

Mario A. Newry v. Land Shark (Bahamas) Limited 2011/COM/LAB/00022 mentioned

Employment law - Voluntary resignation — Overtime payments — Industrial agreement — Whether the appellant is entitled to gratuity, overtime and vacation pay — Whether the appellant should be compensated for “in-lieu-time” — Whether the judge erred in finding that the appellant was not entitled to overtime pay for the purposes of the Employment Act — Sections 8 and 10 of the Employment Act — Cunningham v. Bahamar Development Company Limited SCCivApp No. 116 of 2010Newry v. Land Shark (Bahamas) Limited 2011/COM/LAB/00022.

On the 11th February, 2011 the appellant voluntarily resigned from the respondent company. Two years later in July 2013 he brought an action against his former employer with respect to his entitlement to a) his gratuity: b) vacation pay; and c) a “time-in-lieu” payment or payment for the overtime hours worked prior to his resignation. It was common ground as provided in the Industrial Agreement that persons in supervisory or managerial positions within the company (as the appellant was) were not subject to be compensated monetarily for overtime worked but instead would be given their time off, hence “time-in-lieu” of overtime pay. Relative to item “c” the learned judge found that the appellant was not compensated with his “in-lieu-time” because he resigned prematurely; she expressed the view that before resigning, the appellant ought to have confirmed with the respondent the amount of “in-lieu-hours” he had accumulated and factored those hours into his effective resignation date. Further, the judge found that the appellant failed to prove on a balance of probabilities that he had in fact accumulated the 4,212 “in-lieu-time” hours for which he claimed that had not been compensated and/or for which he was entitled to be monetarily compensated. These findings are at the heart of this appeal.

Held: appeal dismissed; costs to the respondent, to be taxed if not agreed.

The law is clear, appellate courts do not interfere with findings of fact made by lower courts unless it can be shown that the judge was plainly wrong. The appellant seemed to have established on a balance of probabilities that he had accumulated 2,765 hours of overtime and had therefore accumulated that amount of “in-lieu-time”. The question to be answered therefore is, was the appellant entitled to monetary compensation for “in-lieu-time”?

Relative to the appellant's claim under the Industrial Agreement the answer is no. The agreement did not provide for payment. It was agreed between the parties that the appellant was classified as supervisory or managerial and therefore not entitled to monetary compensation for “in-lieu-time”.

Regarding his claim under the Employment Act (the Act) it is clear that pursuant to sections 8 and 10 of the Act to qualify for overtime pay the employee must not hold ‘a supervisory or managerial position’ within the organization. The learned judge found that it was common ground that the appellant held a supervisory position with the respondent company. On the face of it that would defeat the claim for overtime. However, the appellant claimed that notwithstanding his designation as supervisory / managerial he had no authority to exercise one or more functions of a supervisor as previously determined by this Court. Whether or not the appellant was a supervisor or manager for the purposes of the Act, even though he was classified as supervisory or managerial for the purposes of the Industrial Agreement, did not appear to be an issue raised on the pleadings. It seems that once the appellant accepted he was not subject to normal overtime policy for the purposes of the Industrial Agreement if he wanted to go further and claim overtime compensation under the Employment Act he had to plead and show by evidence that notwithstanding that he held a supervisory or managerial position in the company he was not precluded by section 8(4) of the Employment Act from claiming overtime compensation because he did not fulfill the requirement of the position of supervisor or manager for the purposes of section 8(4) of the Employment Act as previously jurisprudentially decided.

In conclusion, the appellant should have had his “in-lieu-hours” verified before leaving his employment and taken those hours prior to his resignation; it is important in this regard to point out that the appellant resigned voluntarily, he was not fired or terminated. It was not the company's fault, therefore, that he was not permitted to take his “in-lieu-time” with pay.

Sir Longley, P.
INTRODUCTION
1

This is an appeal against the written decision of the Honourable Estelle Gray-Evans, J., handed down on the 30th June, 2017 in which she dismissed the appellant's claim against the respondent company for payment to him of either the sum of $222,418.75 or alternatively, the sum of $284,940.63, together with interest and ordered him to pay costs of the action to the respondent to be taxed, if not agreed.

THE PLEADINGS IN THE COURT BELOW
2

In his Writ and Statement of Claim filed in the Supreme Court on the 5th July, 2013 the appellant claimed that consequent on his voluntary resignation from the respondent company on the 11th February, 2011, he was entitled to the payment, inter alia, of:

  • i) a gratuity of $68,875.00 representing 29 years x 2 wks — 58 weeks x $1,185.50;

  • ii) 6 months' vacation pay of $28,500.00 being 6 months x $4,749.92; and

  • iii) either the sum of $125,045.75 being a “time-in-lieu payment” due in accordance with the terms of an Industrial Agreement entered into between the respondent and the Bahamas Industrial Engineers Managerial and Supervisory Union;

  • iv) or alternatively, the sum of $187,565.63 being “overtime” for 4,212 overtime hours due in accordance with sections 8 and 10 of the Employment Act, Ch.321A

  • v) interest at 6.75% from the 10th March, 2011 and continuing.

3

In its Defence filed in the action on the 1st October, 2013, the respondent company denied the appellant's claims and put the appellant to strict proof of the allegations and the amounts claimed in his Statement of Claim. The respondent, however, averred that upon his voluntary resignation on the 11th February, 2011 the appellant was entitled to receive a gratuity in the amount of $59,231.20 representing two weeks' basic pay in the amount of $1,057.70 per week x 28 years.

THE JUDGMENT
4

In her written judgment, the learned judge considered the appellant's various claims and set out her reasons for dismissing the appellant's action in its entirety.

GRATUITY
5

At paragraphs 20 and 21, she found that the respondent had accepted the appellant's entitlement to a gratuity and had offered him a resignation gratuity of $59,455.15 which was approximately $224.51 more than he was entitled to under the Industrial Agreement. In the light of this offer, she found that the appellant's claim to a gratuity of $68,875.00 failed.

VACATION PAY
6

Between paragraphs 22 through 25 of her judgment, the learned judge considered the appellant's claim for payment of 6 months' vacation pay in the sum of $28,500.00. She found that he had adduced no evidence in support of his claim and that the respondent company had in fact made an offer in the sum of $19,207.69 as compensation for untaken and accrued vacation. She found that the respondent had fulfilled its obligation to compensate the appellant for his accrued and untaken vacation and dismissed the appellant's claim which she found not to have been proved.

TIME-IN-LIEU PAYMENT
7

“In lieu time” simply means that for every hour of overtime worked by the appellant he was entitled to a corresponding hour off from work with pay at a time to be agreed with management. It was common ground as provided in the Industrial Agreement that persons in supervisory or managerial positions within the company (as the appellant was) were not subject to be compensated monetarily for overtime worked but instead would be given their time off, hence “time-in-lieu” of overtime pay. Since the appellant had resigned his employment before he could be given his time off for any accumulated in-lieu hours he sought compensation for the “in-lieu-time” accumulated.

8

With respect to the appellant's claim for a “time-in-lieu” payment, the learned judge found, that the appellant was entitled, in accordance with clause 8.2 of the Industrial Agreement to be compensated with time off for the extra hours worked. Clause 8.2 provides as follows:

“8.2. Regular and Shift Employee Entitlement. Employees who work regular hours shall be entitled to a day off on public holidays or the floating holiday without a loss of pay. Shift employees who do not work on a public holiday will receive 8 hours pay for each public holiday, but not for the floating holiday. The floating holiday may be taken at any time during the year subject to Management approval. The Company will continue its current...

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