Bancroft Thompson v Lyford Cay School

• Jurisdiction: Bahamas
• Judge: Nathaniel M. Dean
• Judgment Date: 09 November 2005
• Docket Number: IT/NES/865/05
• Court: Industrial Court (Bahamas)

Between:

Bancroft Thompson

Applicant

and

Lyford Cay School

Respondent

Before:

His Honour Nathaniel M. Dean

IT/NES/865/05

INDUSTRIAL TRIBUNAL

New Providence

Present: Mr. Obie Ferguson Counsel for Applicant

Ms. Camille Cleare Counsel for Respondent

DECISION

1 This matter has been brought by Originating Application which was filed on 4 ^th May, 2005 in which the Applicant claims inter alia; wrongful dismissal, breach of employment contract, failure to pay vacation and all other benefits. The Applicant has conceded that he is not owed accrued vacation pay and as a consequence that application has been dismissed.

2 Counsel for the Applicant and Counsel for the Respondent have agreed the relevant facts of the case and have called upon the Tribunal to make a determination on the law.

3 The Applicant's employment commenced with the Respondent as a caretaker on 1 September, 1992 under a series of written contracts. During the year 1997 the Applicant was promoted to the post of Maintenance Manager under the terms of a fixed term contract, in writing, for a duration of two years, that contract is dated 1 September 1997. Clause 15 of the 1997 contract states:

“This Agreement takes effect in substitution for any previous agreement or arrangement whether written or oral or implied between the Company and the Employee relating to the service of the Employee and any such agreement or arrangement shall be deemed to have been terminated by mutual consent as from the date hereof.”

4 On the expiry of the first fixed term contract the parties executed a second and subsequently a third fixed term contract, the second contract was for a duration of two years and the third for one year, each contract contained provisions for a salary increase.

5 Once the third fixed term contract expired in September 2002, the Applicant continued working as Maintenance Manager without a written contract until 30 April 2004 when he was notified by the Respondent that his employment would come to an end on 1 September, 2004. Subsequently, by letter dated 4 May 2004 it was confirmed by the Respondent that the Applicant's last day of work would be 18 June 2004. The Applicant was paid two months salary in lieu of notice.

6 Counsel for the Applicant submitted that the series of fixed term contracts, with no break or change of employer constituted continuous employment. He stated that the Respondent's letter of 4 May, 2004 states that the reason for the termination of the contract was that they were reorganizing the department. Counsel expressed the view that reorganization resulting in the reduction of staff constitutes redundancy thus the Applicant is entitled to redundancy pay for the 13 years that he had been employed with the Respondent.

7 Counsel for the Respondent countered by stating that each written contract constituted a separate engagement. Thus at the time of his dismissal, the Applicant was employed under an “at will” contract which was determinable by reasonable notice from September 2002 to April 2004. Counsel submitted further that the Applicant had been paid in lieu an amount which was in excess of that which represents the statutory minimum notice period.

8 As far as the law is concerned, Halsbury's Laws of England, fourth edition, volume 16, paragraph 280 explains the expression; “termination of a fixed—term contract by expiry” as follows:

“280 Termination by expiry. As the ordinary law of contract is applicable to contracts of employment, the parties who enter the contract may also stipulate how it is to end. Thus, certain untypical contracts of employment may be worded or otherwise constructed in such a way that the contract terminates by expiry or performance, in which case unless statute intervenes, (“my underlining) there is no dismissal. Such...