Farrington v Higgs and Port & Starboard Ltd (t/a The Green Parrot Restaurant)

• Jurisdiction: Bahamas
• Judge: Bain, J.
• Judgment Date: 27 May 2013
• Court: Supreme Court (Bahamas)
• Docket Number: CLE/gen 93 of 2008
• Date: 27 May 2013

Supreme Court

Bain, J.

CLE/gen 93 of 2008

Farrington

and

Higgs and Port & Starboard Ltd. (t/a The Green Parrot Restaurant)

Appearances:

Mr. Reginald Sheppard for the plaintiff

Miss Paula Adderley for the defendant

Employment Law - Contract of service — Termination — Whether plaintiff's unauthorized transaction was a fundamental breach of employment contract.

1 (1) By a specially endorsed Writ of Summons filed 17 January 2008 the plaintiff claimed against the defendant for slander and/or wrongful dismissal or alternatively unfair dismissal on or about the 28 August 2007. The Statement of Claim was filed on 28 February 2008. By the Statement of Claim the plaintiff claimed –

• “3. By an agreement made on or about the month of October 2001, the Second defendant agreed to employ the plaintiff and the plaintiff agreed to serve the Second defendant as the accounts clerk for The Green Parrot I only, at an initial salary of $200 per week plus one meal a day. At all material times, the plaintiff had full discretion and authorization to make additions and/or deductions to the payroll, without subsequent permission or approvals from any of her superiors.

• 4. On or about the 3 April 2007 after the plaintiff returned from maternity leave, the Second defendant unilaterally changed the said employment contract by requiring the plaintiff to do the accounting and payroll for the other interests of the principals of the Second defendant including but not limited to the Green Parrott II and Paradise Java. During the plaintiff's maternity leave, the defendants had failed to properly arrange for the plaintiffs work to be completed whilst she was on the said leave. The plaintiff did not receive extra compensation or assistance for the performance of these extra unilaterally imposed duties.

• 5. On or about the 9 August 2007, the Second defendant through their agent in the first defendant orally suggested moving the plaintiff out of the accounts department and “promoting” the plaintiff to the position of Shift Manager. The plaintiff reluctantly accepted by duress the position of Shift Manager.

• 6. It was an express term of the renegotiated agreement by duress that:

  a. The plaintiff would work 5 shifts of her choice b. The plaintiff would be paid $100 per shift c. The plaintiff would do the Salary and National Insurance Spreadsheets for $200 per week d. The Second defendant pays the National Insurance of the plaintiff e. The plaintiff was entitled to one meal per shift

• 7. On or about the 12 August 2007, the plaintiff officially commenced her duties as Shift Manager full time as stated in Paragraphs 5 and 6 of the Statement of Claim.

• 8. On or about Thursday, the 16 August 2007, and after the plaintiff was officially moved out of the accounts department and commenced her duties as Shift Manager, the first defendant on behalf of the Second defendant requested and required the plaintiff to complete inter alia the vendor payments and daily revenue up to the 31 July 2007 in addition to her new duties as Shift Manager.

• 9. As required and requested by the defendants, the plaintiff, in full knowledge of the defendants, worked overtime to complete the extra work outside of the scope of the new agreement. The plaintiff worked 5 full days outside of her normal shift and was paid $300 in overtime.

• 10. The defendants with full knowledge of their requirement and request for the work and at all material times with full knowledge that the said extra work was completed outside of the usual working hours requested repayment of the said funds paid as overtime from the plaintiff.

• 11. On or about the 27 August 2008, the Second defendant wrongly and in breach of the said agreement and without giving the plaintiff notice in writing or any notice to determine the said employment or payment in lieu thereof, dismissed the plaintiff by letter of the same date with immediate effect.

• 12. By reason of the matters aforesaid, the plaintiff has been deprived of the said salary and benefits she would otherwise have earned and she has thereby suffered loss and damage;

  • a. Loss of salary for the period of 7 months at $700 per week — $21, 000

  • b. Loss of Overtime during week of 19 August 2007 — $450

  • c. Loss of wages during the week of 26 August 2007 — $700

  • d. Loss of the said meals for a period of 7 months

• 13. Further, the plaintiff is entitled to interest pursuant to the Civil Procedure (Award of Interest) Act and hereby claims to recover interest on the amount found to be due to her at such rate and for such period as to this Honourable Court may appear just.

• 14. On or about Thursday, the 30 August 2007 the first defendant whether by himself and/or as an agent of the Second defendant falsely and maliciously spoke and published of and concerning the plaintiff to Ms. Crystal Young, Shift Manager, with the specific intention of republication, the following words:

  “We had to fire Alethea because she had advanced herself money from the company and refused to pay it back. Please inform the employees that Alethea has been fired for stealing. They will believe it if it came from Management!”

• 15. On or about Friday, the 31 August 2007, the first defendant whether by himself and/or as an agent of the Second defendant falsely and maliciously spoke and published of and concerning the plaintiff to Ms. Patrice Knowles, General Manager:

  “Did you hear the news with regards to Alethea. We had let Alethea go because she advanced herself funds and refused to pay it back.”

• 16. In its natural and ordinary meaning of the words, the said words were understood to mean that the plaintiff had committed a criminal offence in that the plaintiff was stealing by reason of her employment.

• 17. The first defendant whether by himself and/or as an agent of the Second defendant knew and intended that these words, or their gist would be repeated to the other employees and customers and/or authorized their repetition.

• 18. In consequence, the plaintiff's reputation both personal and as far as securing full time employment has been seriously injured and she has suffered considerable anxiety, distress and embarrassment.

• 19. And the plaintiff claims:

  • 1. Damages from breach of the agreement

  • 2. Damages for Slander

  • 3. Interest pursuant to the Civil Procedure (Award of Interest) Act

  • 4. Costs

  • 5. And such other relief as this Honourable Court deems just”.

2 (2) The first defendant Christopher Higgs (Chris) was the Operation Manager of the Green Parrot Bar and Grill situated at Hurricane Hole Marina and on East Bay Street. Chris was also the Operation Manager for Paradise Java.

3 (3) The Second defendant was a company incorporated and doing business in The Bahamas. The Second defendant owns and operates the Green Parrot Bar and Grill situate at Hurricane Hole Marina and on East Bay Street and Paradise Java at Paradise Island Ferry Terminal. At the trial the Second defendant was represented by T. Peter Maury (“Peter') the President, a director and shareholder.

4 (4) A Defence was filed on 3 April 2009 denying the allegations in the Statement of Claim.

5 (5) The issues to be determined by the court are –

• (i) Whether the plaintiff was wrongfully dismissed?

• (ii) Whether the words spoken of the plaintiff are defamatory?

• (iii) Whether the plaintiff entitled to damages?

6 (6) The plaintiff was a Shift Manager of the Second defendant. In addition to her duties managing the restaurant, she was also in charge of the National Insurance and payroll. She was paid a wage of $100 per day for five days of her choice as Shift Manager and received a further $200 per week for her payroll duties. She was also entitled to meals and her National insurance was paid for by the company.

7 (7) Before moving into the position of Shift Manager, the plaintiff was a payroll clerk for 6 years. Her duties included daily revenue calculation, vendor payments, credit card enquiries for the Second defendant and their other subsidiary companies. The plaintiff was responsible for preparing the payroll for all employees. She calculated overtime payments for all employees and for herself.

8 (8) When the plaintiff returned to work after maternity leave in March 2007 she found that the Second defendant had opened another restaurant and there were added responsibilities. The plaintiff requested a job description from the Second defendant in writing. By email dated 3 April 2007 Chris gave the plaintiff the following job description –

“Title — Bookkeeper/Administrative Assistant

Duties include — Accounts Payable/Receivable where applicable, monthly national insurance contribution for all employees, and payroll entries/pay checks. Also daily entries on revenue sheets and verifying credit card transactions. Overage and shortage sheets for each bartender. This will apply to all of the bartenders of Port and Starboard Ltd. These being Green Parrot Hurricane Hole Branch, Paradise Java Ferry Terminal and Green Parrot Two East Bay Street.

Salary is $500.00 per week. We will pay your National Insurance Board contribution.

Time 8:00 a.m. — 4:00 p.m., Monday to Friday”.

9 (9) Later the plaintiff complained to Peter about the work load and requested a salary adjustment.

10 (10) In August 2007 the plaintiff was offered to join the management team as a Shift Manager and in charge of National Insurance and payroll. By email dated Sunday, 12 August 2007 at 7:27 a.m. the plaintiff was advised of the new employment agreement –

“Salary to do the payroll and national insurance for all three locations.

Management Shifts (Five) $100.00 per shift.”

11 (11) In a later email Chris agreed that the plaintiff would be paid an additional $200.00 per week as salary to do the payroll and national insurance for all three locations. Later the plaintiff requested Sundays off. This was agreed by Chris.

12 (12) By email dated 15 August 2007 from...