Delphine Riley v St. Alban's Resort Holdings Ltd

• Jurisdiction: Bahamas
• Judgment Date: 29 August 1997
• Docket Number: No. 39 of 1997
• Court: Industrial Court (Bahamas)

In the Matter of The Industrial Relations Act

Delphine Riley

Applicant

and

St. Alban's Resort Holdings Limited

First Respondent

Harrison R. Petty

Second Respondent

No. 39 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

The Facts:

The Applicant commenced employment with Colony Club Resort situate on St. Alban's Drive off West Bay Street on the 17th December, A.D., 1986 as a maid in the Housekeeping Department thereof. The First Respondent is the Owner of the said Colony Club Resort, and the Second Respondent is the Beneficial Owner/Director/Primary Agent of the First Respondent.

The Applicant was dismissed on the 21st September, A.D., 1989 purportedly for persistent breaches of company regulations and refusing to cooperate with the Supervisor in the performance of her work contrary to the terms and conditions of her contract of employment.

The Applicant denies executing the Respondents' Standard Form of contract of employment, and further, denies ever having seen or heard of such a contract until a pro forma of same was exhibited as a part of the Respondent's brief for the purposes of a Hearing at an Arbitration Tribunal sometime in 1990 under the law as it then was.

The Applicant stated that she performed her duties, but was wrongfully dismissed by the Respondents on 21st September, 1989.

The Respondents submitted in limine that the Tribunal had no jurisdiction to hear this matter on the following grounds:

• {a} Paragraph 21(1)(d) of the Fourth Schedule of The Industrial Relations {Amendment} Act, 1996, provides:

  “The amendments effected by this Act in respect of the Industrial Relations Act, apply…to any trade dispute which arose and that was reported to the Minister prior to that date {the commencement date of the Industrial Relations [Amendment] Act, 1996} but in respect of which a settlement had not been reached at that date.”

  The Respondents submit that the expression “settlement” refers to matters which were reported to the Minister as trade disputes, and/or about which conciliation proceedings had been commenced but they remain extant and unsettled.

  The Respondents say that the subparagraph does not encompass matters that had already been referred to an Arbitration Tribunal under the law as it then was, because the Minister is functus officio as regards her statutory powers under the law prior to the 1996 Amendment.

• {b} The Respondents further submit that the Originating Application herein is statute barred, because it is a new proceeding purportedly commenced outside of the time prescribed under section 5(1) of the Limitation Act, 1995.

  The Respondents say that for the two {2} foregoing reasons, the Industrial Tribunal had no jurisdiction to hear this matter.

  In the alternative, the Respondents submit that its dismissal of the Applicant without notice was justified because she acted in breach of her contract of employment.

Applicant unrepresented.

Counsel for Respondents — David C. Bethel Esq.

DECISION AND REASONS

Consideration of the Evidence:

The Respondents allege that on the 10th August, 1989, rooms which were assigned to the Applicant to be cleaned, were inspected by the Second Respondent, Mr. Patrick Petty, the Manager of the said Colony Club, and Mrs. Margueritte Musgrove, the Applicant's Supervisor.

The Respondents allege that all of the rooms were found to be in a deplorable state, whereupon the Applicant was given a Warning Notice dated 10th August, A.D., 1989, which was signed by the Applicant on 1st September, A.D., 1989, purportedly in accordance with the Standard Form of contract.

The Applicant testified however, that although she signed the said Warning Notice, she had not read it prior to signing it. She said that it was presented to her by Mrs. Musgrove merely as something that the Second Respondent required her to sign, and she did so without knowledge of its contents.

The Respondents state that on 5th September, 1989, the sidewalk in front of rooms 1 through 9 which had been assigned to the Applicant to be cleaned, was not cleaned. Mrs. Margueritte Musgrove, the Applicant's Department Head, presented the Applicant with a Warning Notice of the same date, but the Applicant refused to sign it.

Similarly, on the 7th and 14th September, 1989, further Warning Notices were issued to the Applicant, but she refused to sign them.

The Applicant testified that she did not sign the Warning

Notices, because the contents thereof were untrue.

The Second Respondent testified that it was management's policy to endeavour to inspect rooms or areas that were assigned to maids for cleaning, in their presence. He stated that the contents of the said Warning Notices were indeed correct and true.

He denied that he was intent upon downsizing his operations, and specifically, ‘getting rid of some of his housekeeping staff. He pointed out that to do so would have been inconsistent with the twenty-five percentum {25%} expansion of the hotel which was in fact carried out.

The Second Respondent said that he circulated copies of the Standard Form Of Contract to all employees with a cover letter indicating that inasmuch as the originals thereof had been mislaid, management was requesting their re-execution of the Agreement.

He said that as far as he was aware, all employees again signed the Agreement”

The Second Respondent testified that he introduced the Standard Form Of Contract at Colony Club {inter alia requiring Warning Notices to be issued to employees as appropriate} in August of 1989, but he noted that if such a contract were in place prior thereto, the Applicant would have received more Warning Notices. He said that her job performance was inconsistent.

He said that while it may be true {as asserted by the Applicant} that the Applicant was ‘maid of the month’ in June, 1989, this may have been because she had been assigned less demanding duties; e.g. smaller rooms.

In answer to the Tribunal's inquiries as to the oral explanation of conditions of employment to employees prior to the institution of the written contract and procedures, the Second Respondent said that the Department Head and/or the Manager {Mr. Patrick Petty} would explain the conditions of employment to employees. He said that the employees would be told of their hours of work; their salary, and their expected performance. He noted that the Housekeeper met on a daily basis with the maids to discuss duties and problems.

The Second Respondent said that prior to the written Standard Form Of Contract, there were no specific penalties for lack of punctuality or performance. He said that employees who would be guilty of persistent breaches in performance or punctuality would be replaced, but that they would be dismissed with notice.

When the Tribunal inquired whether there were occasions prior to the introduction of the Standard Form Of Contract, when employees had to be summarily dismissed by the Respondents, the Second Respondent said that persons who were guilty of theft, fighting on the premises, and gross insubordination, were summarily dismissed.

The Second Respondent admitted that prior to the introduction of the standard Form Of Contract at Colony Club, management was more lax with employees.

In answer to the Tribunal's inquiry, the Second Respondent said that upon termination, the Applicant was paid whatever vacation pay she was due together with her salary entitlement and four percentum {4%} of her salary earned for the incompleted year of employment as required by the Fair Labour Standards Act.

The Tribunal then inquired as to whether the Second Respondent was familiar with the labour laws of the Bahamas prior to his establishment of formal employment procedures at Colony Club; he replied emphatically in the affirmative.

The Tribunal then read paragraph 36 of the Code Of Industrial Relations Practice to the Second Respondent as follows:

“Communication and consultation are particularly important in times of change. The achievement of change is a joint concern of management and employees and should be carried out in a way which pays regard both to the efficiency of the undertaking and to the interests of employees. Major changes in working arrangements should not be made by management without prior discussions with employees…”

Article 11 of the Standard Form Of Contract of the Respondents reads:

“The Company reserves the right, in the light of changing circumstances, to change the above Conditions of Employment upon thirty {30} days notice.”

The Tribunal then asked the Second Respondent if he thought that article 11 of the Standard Form Of Contract was compatible with paragraph 36 of the Code Of Industrial Relations Practice.

Counsel for the Respondents intervened and said that any opinion of the labour laws of the Bahamas expressed by the Second Respondent would be entirely as a result of his advice to him.

The Second Respondent replied that the company was adamant that it had to reserve the right to alter employees' conditions of employment in light of any possible changing economic circumstances from time to time.

On re-examination, the Second Respondent pointed out that even though article 11 is a provision of the contract, the company in its entire history has not had to rely thereon.

The Second Respondent further opined that the written Standard Form Of Contract did not differ radically from the conditions of employment which were previously communicated orally to employees; in fact he said that some of the conditions in the Standard Form were improvements upon the former position; notably, the “Sick Leave” benefits.

The Applicant testified that she is 37 years of age, and that she attended the All Age Public School in Staniel Creek, Andros.

She said that she left school in the 10th grade when she was 15 years old.

She said that when she was dismissed by the Respondents, her salary was $150.00 per week, and that upon termination she...