Ferguson v Island Hotel Company

JurisdictionBahamas
CourtIndustrial Court
JudgeDemeritte-Francis, P.
Judgment Date01 Jan 2015
Docket NumberIT/NES/1538/2010

Industrial Tribunal

Demeritte-Francis, P.

IT/NES/1538/2010

Ferguson
and
Island Hotel Company
Appearances:

Mr. Kahlil Parker for the applicant.

Mr. Samuel Rahming, Director and Manager of Labour Relations for the respondent (along with Mr. Omar Rolle).

Employment Law - Industrial dispute — Termination of employment — Dismissal — Whether employer failed to give proper notice or payment in lieu of notice — Whether employee wrongfully dismissed — Whether employee grossly negligent — Whether employee in breach of contract — Dismissal found to be justified.

Demeritte-Francis, P.
PRELIMINARY POINT
1

By virtue of Section 72 and 73 of the Industrial Relations Act, (Chapter 321) the Minister of Labour has by Certificate of Referral dated 16th November, 2010 referred the subject dispute to the Industrial Tribunal.

2

By Originating Application filed the 20th January, 2011 the applicant brought before the Tribunal an application for wrongful dismissal due to the employer's failure to give proper notice or payment in lieu of notice.

3

A Notice of Appearance (Form D) dated 2nd February, 2011 and the Defence (Form E) were filed on 16th February, 2011 and 19th June, 2014 respectively in the Tribunal by Counsel for the respondent.

4

A Notice of Change of Attorney was filed in the Industrial Tribunal on the 4th November, 2014 by Terrel A. Butler and Associates, Attorney for the applicant at the time, who had been appointed in place of Munroe and Associates.

5

In accordance with Rule 8(2) the Secretary to the Tribunal issued a Notice of Hearing (Form J) dated 14th October, 2014 to the applicant and the respondent. The matter was listed to be heard on 5th and 6th November, 2014.

6

On the scheduled hearing date of the matter before the Industrial Tribunal on the 5th and 6th November, 2014, the applicant's Attorney submitted to the Tribunal that she needed an opportunity to become familiar with applicant's case. The Attorney indicated that as she had only just been retained by the applicant and had not yet had an opportunity to review the respondent's bundle of documents which were previously served on the former Attorneys' of record, Munroe and Associates. On that basis the Attorney requested an adjournment to allow Counsel to discuss a course forward.

7

The respondent in response indicated to the Tribunal that the applicant had served him on the morning of the hearing with a copy of the applicant's Witness Statement dated 4th November, 2014 and opening submissions dated 30th October, 2014 giving him no opportunity to consider the documents. It was mutually agreed between counsel that documents would be exchanged between the parties and possible discussions held to attempt a settlement.

8

On the 20th November, 2014 the Tribunal was advised by letter written by the applicant's counsel that the parties had made an attempt to have settlement discussions. However, the discussions were unsuccessful and no agreement had been reached between the parties as the respondent maintained that they were justified in terminating the applicant and wish to proceed to trial.

9

At the scheduled hearing on the 4th February, 2015 counsel for the applicant raised a point in limine for a decision to be made by the Tribunal. The preliminary points raised comprised the following:

10

The applicant made application to the Tribunal to have the Defence submitted by the respondent struck out for filing outside the mandatory time limit prescribed under the rules. The applicant submitted that about three and a half years had elapsed, after the time prescribed, before the respondent had filed a Defence. It was submitted that failure to do so within the prescribed time should result in the Defence being struck out.

11

The attorney for the applicant submitted that there was no justification for the delay in filing of a Defence and added that no proper explanation was given by the respondent, and as such the Court should use its discretion and dismiss the Defence.

12

The attorney for the applicant further stated that the only explanation that was given by the respondent was that another counsel had carriage of the matter. The attorney for the applicant in response stated that this could not shift the responsibility of the respondent to ensure that a Defence was filed within the time stipulated.

13

It was further submitted that this delay caused prejudice to the applicant's case. He was prejudiced during the lengthy delay through no fault of his own because his legal file relative to this claim had been stolen from the offices of his previous attorney with particular information which he had hoped to rely on at the hearing. Further it was stated that it caused hardship to the applicant because of the inability to bring closure to the matter.

14

It was further submitted by the attorney for the applicant that nothing in the rules stated that the respondent could seek to put in a Defence after time had elapsed.

15

In support of these arguments Counsel drew the Tribunal's attention to section 66 of the Industrial Relations Act, Chapter 321 which states that, Section 66 –

“Subject to the provisions of this Act, the Tribunal may by rules regulate its own practice and procedure for the hearing and determination of matters before it and prescribe the fees of the tribunal and the forms to be used before it.”

16

In response to the application to strike out the respondent's Defence, counsel for the respondent addressed the Tribunal and submitted the following:

  • “14. Proceedings in the Industrial Tribunal are governed by the Industrial Relations (Tribunal Procedure) Rules 1997. Tribunal Procedure Rules).

  • 15. Pursuant to Rule 6

    ‘A respondent who intends to resist the application, shall within fourteen days of entering an appearance to the proceeding, present to the Secretary in writing a defence in Form E in the Schedule setting out sufficient particulars to show on what grounds he intends to resist the application.’

  • 16. Rule 6 is silent on the consequences of the tardy/late/delayed filing of a defence by the respondent. In our respectful submissions, it does not stipulate a penalty, punishment or otherwise and there is no expressed provision allowing the defence filed by the respondent, even though out of time, to be struck out as of course.

  • 17. The respondent filed its defence in June 2014, four months prior to receiving the Tribunal's Notice of Hearing on the 27th October, 2014. Gibbings v. Strong 1884 26 Ch. D. 66 is an accepted authority for the principle that a defence served after expiration of the prescribed time but before judgment has been given cannot be disregarded, and will generally prevent plaintiff from entering judgment, even though it is not served until after the plaintiff has served its summons or notice of motion for judgment. In such a case the court will have regard to the contents of the defence served out of time and deal with the case in such a manner as justice can be done. It is therefore submitted that the right of a respondent to defend claims brought against it is afforded great protection and adherence by the court and a defendant will not be disallowed from defending an action solely on the ground/basis that its defence was served out of time.

  • 18. The Tribunal's jurisdiction to strike out pleadings is derived from Rule 12(1)(d) of the Tribunal Procedure Rules.

    Rule 12(1)(d)

    “A Tribunal may –

    • (a) ……

    • (d) subject to paragraph (2), any stage of the proceedings, order to be struck out or amended any notice or appearance or defence, on the grounds that it is scandalous, frivolous or vexatious;

    • (e) subject to paragraph (2), at any stage of the proceedings, order to be struck out any originating application, notice of appearance or defence, on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, the respondent has been scandalous, frivolous or vexatious; and

    • (f) …….

  • 19. The meaning of scandalous, frivolous and vexatious in the context of striking out applications has been the subject of judicial pronouncement and definition. Frivolous or vexatious has been held to refer to cases which are obviously frivolous or vexatious, or obviously unsustainable. The pleadings must be so clearly frivolous that to put it forward would be an abuse of the process of the court. To establish that the defence is scandalous it must be demonstrated that the defence contains allegations of dishonesty or outrageous conduct that bares no relevance to the issues the subject of the claim. There is no indication or evidence of scandal, frivolous or vexation on the part of the respondent. It is submitted that the qualifying behaviours contemplated by the striking out provision stipulated in the Industrial Procedure Rules does not include the tardy or delayed filing of a defence by a respondent. (sic)

  • 20. The striking out provisions contained in the Supreme Court Rules, 1976, Chapter 53 are broader in scope than those contained in the Industrial Tribunal Rules.

    Pursuant to the Supreme Court Rules, 1976, Order 19, rule 1

    The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

    • (a) it discloses no reasonable cause of action or defence, as the case may be; or

    • (b) it is scandalous, frivolous or vexatious; or it may prejudice, embarrass or delay the fair trial of the action; or

    • (c) it may prejudice, embarrass or delay the fair trial of the action; or

    • (d) it is otherwise an abuse of the process of the court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

  • 21. The jurisdiction of the Supreme Court in dealing with striking out applications is much broader than the...

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