Ian Sloan Rutherford v Peace Holdings Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 18 September 2014
• Docket Number: No.1411 of 2010

In the matter of the Industrial Relations Act hapter 321

And

In the matter of the Employment Act Chapter 321A

Ian Sloan Rutherford

Applicant

and

Peace Holdings Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.1411 of 2010

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Bradley Cooper Esq.

Counsel for the Respondent — Clinton C. Clarke Esq.

DECISION AND REASONS

The Facts:

1 By Originating Application dated June 14, 2010, the Applicant alleges that he was employed with the Respondent in the capacity of Assistant Office Manager and that he commenced employment in May of 2007.

2 At all material times his salary was $78,000.00 per annum or $1,500.00 per week.

3 He said that he was advised by the Project Manager of the Respondent's development company, Bahamas General Construction & Development Company Limited that the bank which was facilitating a condominium project for the Respondent and/or the development company had advised that it was necessary for the Respondent to reduce its salary overheads prior to providing financing for the said project.

3 In the circumstances, the Applicant alleges that he was made redundant by the Respondent on or about December 9, 2009.

4 He further alleges however that contrary to Section 26 (2) (b) of the Employment Act (“the Act”), he did not receive redundancy pay as provided therein.

5 He alleges that he received the sum of $10,680.00 purportedly in pursuance of section 26 (1)(a) thereof consistent with the amount to which he would have been entitled had he not been a managerial or supervisory employee of the Respondent.

6 In the circumstances the Applicant alleges that he is entitled to be paid by the Respondent a sum in excess of $11,000.00 representing the balance lawfully due to him pursuant to section 26 (2)(b) of the Act.

7 By Defence under the hand of the Manager of the Respondent, Ms. Pauline Lightbourne, dated July 5, 2010, the Respondent indicated that the Applicant was dismissed for “loss of confidence”.

8 The Defence further indicated that “The Applicant was not in a supervisory or managerial position. Between February 2008 and May 2009 [the Applicant's] responsibilities were basically preparing letters and contracts for the Developers review and sign off, and negotiating Pre-lease spaces in the shopping centre, which was to be constructed on property located at Prospect Ridge. He also assisted with the preparation of payroll, and prepared reports for the bank. [He] had no specific title, however… the records indicate that… A credit reference was prepared for BNS stating his salary at $1,500.00 and [that] his position was Assistant Manager.”

The Evidence:

9 The Applicant testified that while he could not unilaterally hire, fire, lay off, promote or transfer any employees of the Respondent, in the absence of Ms. Pauline Lightbourne, the Manager, in his capacity as Assistant Manager he could and did in fact supervise and/or discipline subordinate employees of the Respondent.

10 In support of his contention that he was an Assistant Office Manager of the Respondent, he produced a letter on the Respondent's letterhead dated October 27, 2009, under the hand of the Manager, Ms. Pauline Lightbourne as follows:

“ The Manager

Commonwealth Bank

Wulff Road Branch

P.O.Box SS 6263

Nassau Bahamas

Attn: Ms. Kayla Johnson

Dear Miss Johnson,

This letter is to confirm that Mr. Ian Rutherford is employed with the above named company and has been for the past three years. Mr. Rutherford is occupied as an Asst. Office Manager and is presently at a salary of $78,000. 00 per annum.

Should you have any additional queries please don't hesitate to contact our office.

Regards

Pauline Lightbourne”

11 A few days after the dismissal of the Applicant, Ms. Lightbourne purported to confirm to him his entitlement to redundancy pay as a manager (pursuant to section 26 (2)(b) of the Act).

12 The Applicant produced a copy of the said e-mail to the Tribunal.

13 On behalf of the Respondent Mr. Albert Ballard testified that he is the Vice President and Director of the Respondent; and for all intents and purposes serves as the Managing Director of the Respondent.

14 He said that contrary to the assertion of the Applicant, he (the Applicant) was not an Assistant Manager of the Respondent, and had no supervisory or managerial responsibilities and/or authority.

15 Mr. Ballard then sought to impugn or. disparage the character of the Applicant by alleging that he had committed fraud and forgery during the course of his employment with the Respondent.

16 The Tribunal straightaway indicated its disinclination to accept that part of Mr. Ballard's testimony in view that there was not one scintilla of fraud or forgery mentioned in the Defence filed on behalf of the Respondent.

Relevant Law:

17 Section 26 (2)(b) of the Act provides as follows:

“26. (1) Where an employee has been continuously employed for one year or more is dismissed by his employer because of redundancy, his employer is, subject to the provisions of this Part, liable to pay to him a sum (in this Act referred to as a “redundancy payment” or “redundancy pay”) calculated in accordance with subsection (2) …

(b) where the employee holds a supervisory or managerial position

• (i) one month's notice or one month's basic pay in lieu of notice, and

• (ii) one month's basic pay (or a part thereof on a pro rata basis) for each year up to forty-eight weeks.”

18 Section 33 of the Interpretation and General Clauses Act, Chapter 2, provides:

“33. (1) Where any Act —

• (a) repeals any former Act and substitutes other provisions therefor; or

• (b) repeals any former Act and re-enacts such former Act with or without modification, any subsidiary legislation made under the former Act and in force at the commencement of the repealing Act shall, so far as it is not inconsistent with the repealing Act, continue in force and have the like effect for all purposes as if made under the repealing Act.”

19 The Fair Labour Standards Act, Chapter 295, was repealed by the Employment Act, 2001.

20 The terms “managerial” and “supervisory” are not defined in the Act and hence the definition of same under the First Schedule to the Fair Labour Standards (Exceptions) Order applies as follows:

“ Any employee… performing managerial or supervisory functions, that is to say, having authority on...