Floyd Percentie v Holland America Line Westours Inc.

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 25 April 2006
• Docket Number: No.878 of 2005

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Floyd Percentie

Applicant

and

Holland America Line Westours Inc.

Respondent

No.878 of 2005

INDUSTRIAL TRIBUNAL

NASSAS

Preliminary Note:

The hearing of this matter was scheduled for two (2) days commencing on Monday, April 24, 2006, and to continue through Tuesday, April 25, 2006.

The Applicant appeared as scheduled on Monday, April 24, 2CC6, and the Respondent appeared by its representative who because of a medical emergency which involved him in having to arrange for air transport of an individual to the USA.

The Tribunal informed the parties that the matter was scheduled for two (2) days, and that it was prepared to adjourn the Hearing to commence at 10:00 am., Tuesday,

The Tribunal emphasized that both parties should be prepared to proceed (with necessary witnesses in attendance) at the commencement of the adjourned Hearing.

In the interim the Tribunal advised the parties of its obligation under section 60 of the Industrial Relations Act, Chapter 321, which provides that the Tribunal, “shall make all such suggestions and do all such things as appear to be right and proper for reconciling the differences between the parties.”

Both parties indicated that they were amenable to further discussions in an attempt to resolve the dispute amicably; specifically, the Respondent's representative indicated that he would make telephone contact with his principals in the USA in an attempt to resolve the matter prior to the commencement of the adjourned Hearing.

The Hearing continued as scheduled at 10:00 am., Tuesday, April 25, 2006, and the parties advised that the matter remained unresolved.

The Applicant appeared with his representative, but the Respondent appeared only by its representative who requested a further adjournment in order that necessary witnesses for the Respondent might appear.

In the circumstances, the Tribunal denied the request of the Respondent's representative and advised that it would proceed in the absence of witnesses on its behalf.

Representative for the Applicant — Mr. Frank Carter

Representative for the Respondent — Mr. Kevin Cartwright

DECISION AND REASONS

The Facts:

1 The Applicant alleges that he commenced employment with the Respondent early in October of 1997 in the capacity of engineer aboard the Respondent's vessel, “Half Moon Clipper.”

2 By letter dated September 4, 1998, the Applicant was promoted to captain of the Respondent's vessel, “Half Moon Clipper.”

3 The Applicant alleges that he was wrongfully dismissed by the Respondent on July 16, 2003, and claims damages for wrongful dismissal.

4 The Respondent (by unsworn statement from its representative) avers that the Applicant was not wrongfully dismissed or dismissed at all, and alleges to the contrary that the Applicant abandoned his employment.

5 In the circumstances the Respondent avers that the Applicant is not entitled to damages for wrongful dismissal or any damages at all.

The Evidence:

6 The Applicant testified that he applied for vacation at least two (2) weeks in advance in June of 2003. His vacation was due to commence on June 30, 2003, and he reminded the Respondent of his entitlement to vacation pay in advance of the vacation.

7 In response to his request for vacation pay, the Applicant received a letter dated June 29, 2003, from the Respondent as follows:

“Captain Floyd Percentie

Half Moon Clipper

Dear Floyd,

Further to our conversation this morning please be advised that you are scheduled to start your vacation as of tomorrow date June 30, 2003. This vacation time was approved by Mr. Matthew Sams and subsequently Mr. John Gardner's vacation time was scheduled to commence on your return. Captain Ben Miller is to fill in for you and Gardner and his vacation time was also scheduled accordingly. It is imperative that you start your vacation time as scheduled as this will cause a lot of conflict with the other persons scheduled.

Mr. Matthew Sams has stated that he has never paid your vacation time in one lump payment and he will not change the policy at this time or in the near future, therefore I am unable to assist you with this matter [Tribunal's emphasis] .

The Nassau trip and a trip to Spanish Wells is not confirmed at this time as the parties concerned (Pedro and the ship yard) were unable to give us a confirmation time therefore The Half Moon Clipper will overnight in Cape Eleuthera and as scheduled captain Ben Miller will bring her back to Half Moon Cay on Monday, June 30, 2003. I would suggest that the crew except John Gardner take their two days off in Eleuthera and come across to Half Moon Cay on Tuesday afternoon or Wednesday morning as there will be a boat made available to transport staff for that week.

Please enjoy your vacation and I look forward to your return.

Sincerely,

Waynewright Scott

Island Manager

Half Moon Cay

Bahamas.”

8 The Applicant testified that he approached the said Mr. Scott on the bridge of the vessel, “Half Moon...