Jacklyn Conyers v Central Bank of the Bahamas

• Jurisdiction: Bahamas
• Judge: Sir Brian M. Moree
• Judgment Date: 15 March 2023
• Docket Number: 2018
• Court: Supreme Court (Bahamas)

Between

Jacklyn Conyers

Plaintiff

and

Central Bank of the Bahamas

Defendant

Before:

The Honourable Sir Brian M. Moree Kt.

2018

CLE/gen/00923

IN THE SUPREME COURT

Common Law & Equity Division

Appearances:

Mr. Obie Ferguson KC and Ms. Alva Stewart Coakley for the Plaintiff

Mr. Ferron Bethell KC and Ms. Lakeisha Hanna for the Defendant

1 On 2 August, 2022 I handed down my decision in this case with written reasons to follow. At that time I held that the Plaintiff's employment had not been (i) wrongfully or unfairly terminated; or (ii) terminated in breach of her contract of employment. Therefore I dismissed the action with costs to be paid to the Defendant by the Plaintiff to be taxed if not agreed. I now set out the reasons for my decision with apologies for the delay in doing so.

Pleadings

2 This action was commenced by a Generally Indorsed Writ of Summons filed on 13 August, 2018. In the Re-Amended Statement of Claim filed on 17 December, 2021 Ms. Jacklyn I. Conyers ( “the Plaintiff” or “Ms. Conyers”) claimed that on 20 March, 2018 she was wrongfully dismissed and/or unfairly dismissed by her employer, the Central Bank of The Bahamas (“ the Defendant” or “the Bank”). Additionally, the Plaintiff claimed that the termination of her employment by the Defendant on that date breached the provisions of her contract of employment as contained in the Industrial Agreement between the Defendant and the Bahamas Communications and Public Managers Union (“ the Union”) signed on 26 February, 2016 and registered on 27 July, 2016 (“ the IA”). Specifically, the Plaintiff pleaded in paragraph 13 of the Re-Amended Statement of Claim that the Defendant's termination of her employment was in breach of Article 23.3 of the IA as she was not allowed to schedule her leave in consultation with her immediate supervisor, thereby rendering the termination unfair and wrongful. Further, the Plaintiff pleaded in paragraph 14 that by terminating her employment purportedly under Article 51.5 of the IA “… the Defendant diminished and derogated the rights and protection of the Plaintiff by paying [her] the lesser benefits provided for under section 29(1)(c) of the Employment Act as opposed to the better benefits that [she] would be entitled to at Common Law, thereby rendering the termination wrongful.”

3 The Particulars of the Breach of Contract were:

• i. The Defendant and or its agents failed to follow the vacation procedure pursuant to Article 23.3 of the Industrial Agreement;

• ii. The Defendant and or its agents scheduled vacation time for the Plaintiff without consulting the Plaintiff .

4 The Particulars of Wrongful Dismissal pleaded were:

iii. The Defendant and or its agents failed to pay the Defendant (presumably intended to be the Plaintiff) the better benefits provided for at common law.

5 The Particulars of Unfair Dismissal set out in the Re-Amended Statement of Claim were:

• iv. The Defendant terminated the Plaintiff's employ without justification and/or reason;

• v. The Defendant failed to allow the Plaintiff the opportunity to understand the nature of any issues, questionable conduct or wrongful actions imputed to her, if any, or at all;

• vi. The Defendant failed to take into consideration the assigned duties of the Plaintiff as it related to taking accrued vacation.

6 The Plaintiff sought in the Re-Amended Statement of Claim declarations that (i) in the circumstances the Defendant's act of compelling the Plaintiff to take accrued vacation was a unilateral change of the Plaintiff's contract; (ii) the Defendant had breached the Plaintiff's contract of service; and (iii) the Plaintiff was entitled to credit for vacation she was wrongfully compelled to take. She also sought damages for breach of contract, wrongful dismissal, and unfair dismissal together with Interest and Costs.

7 The Re-Amended Defence was filed on 11 January, 2022. All of the claims made by the Plaintiff were denied by the Defendant and it averred that the Plaintiff's employment was lawfully terminated with pay under the provisions of the IA. Specifically, the Defendant pleaded that the Plaintiff was paid severance pay and payment in lieu of Notice under Article 51 of the IA and that she received all outstanding salary, accrued vacation, her mortgage subsidy for the month of March, 2018 and the funds in her savings plan. The Defendant denied that it acted in breach of the Plaintiff's contract of employment and specifically Article 23.3 of the IA and also denied that it “… diminished and derogated the rights and protection of the Plaintiff by paying the Plaintiff lesser benefits as provided for under …section 29(1)(c) of the Employment Act as opposed to better benefits under the Common Law.”

General

8 All of the witnesses who gave evidence at the trial filed one or more Witness Statements which, in each case, stood as his/her evidence in chief at the trial. The Plaintiff filed two Witness Statements on 15 July, 2021 and 28 February, 2022 respectively. Counsel for the Bank, Mr. Bethell KC, objected to the admissibility of paragraphs 7 – 11 of the Witness Statement of Ms. Conyers filed on 28 February, 2022 and Mr. Ferguson KC, counsel for Ms. Conyers, agreed that he would not rely on those paragraphs. Accordingly, I ignored those paragraphs. The Plaintiff also relied on the evidence of Ms. Charlene Fox-Deveaux (“ Ms. Fox-Deveaux”) who filed a Witness Statement on 15 July, 2021.

9 Three witnesses gave evidence at the trial for the Defendant — Ms. Nakessa Beneby, the Deputy Manager of the Human Resources Department of the Defendant (“ Ms. Beneby”) who filed two Witness Statements on 30 July, 2021 and 25 February, 2022 respectively; Ms. Tamieka Watson, the Manager of the Exchange Control Department of the Defendant (“ Ms. Watson”) who filed three Witness Statements on 4 August, 2021, 25 February, 2022 and 10 March, 2022 respectively; and Mr. Charles Watson who filed his Witness Statement on 11 August, 2021.

10 While the evidence of the witnesses for the Plaintiff differed in some respects from the evidence of the Defendants' witnesses there were few instances where there were direct factual conflicts between them on material issues. Where that occurred, based on my seeing, hearing and observing the demeanour of the witnesses and analyzing the documentary evidence, I preferred the evidence of the witnesses for the Defendant.

11 There was no objection to the admissibility of the documents in the Agreed and Non-Agreed Bundle of Documents filed on 9 July, 2021 except for the document at Tab 49 and Mr. Ferguson KC stated that the Plaintiff would not be relying on that document. Similarly, there was no objection to the admissibility of the documents in the Supplemental Agreed and Non-Agreed Bundle of Documents filed on 18 March, 2022 except for the documents at Tabs 6, 10, 11 and 12. Mr. Ferguson KC objected to the admissibility of the document at Tab 6 on the ground that it had not been brought to the attention of the Plaintiff and he referred to Article 16.3 of the IA. That provision stated that “[n] othing in an employee's file may be used as evidence against him, unless it had previously been brought to the employee's attention, and duly acknowledged by him.” After considering the matter I ruled that the document was admissible through Ms. Watson who was the author of the email. I noted that the document had been disclosed to Ms. Conyers through the process of Discovery in this case. It was not necessary to rule on the other 3 documents as Mr. Ferguson stated that the Plaintiff would not be relying on those documents.

12 Article 63.1 of the IA provided that “[e] xcept where otherwise agreed, the provisions of this Agreement shall be effective on the 15 ^th January, 2015 and remain in effect for a period of four (4) years from this date.” Based on that provision, both counsel agreed that the IA was valid and binding on the parties at the time of the termination of Ms. Conyers' employment and that her contract of employment was governed by the provisions of the IA.

13 Under the IA the Union was recognized as the exclusive collective bargaining agent for all employees of the Bank in the Bargaining Unit as defined in Article 3 and classified in Annex A which included the Plaintiff. At the time of the termination of her employment, the Plaintiff was the Area Vice President of the Union.

Evidence

14 Ms. Conyers was employed by the Bank from 23 August, 1982 to 20 March, 2018 – almost 36 years. At the time when her employment was terminated she was the Deputy Manager of the Exchange Control Department of the Bank. Her responsibilities included training staff, dealing with Money Transfer business relative to exchange control matters and working with Exchange Control Systems. Prior to the termination of her employment, Ms. Conyers reported to Ms. Watson.

15 It was common ground between the parties that since joining the Bank Ms. Conyers had not taken all of her vacation leave which she was entitled to in each year of her employment under the IA. Over a period of time that resulted in Ms. Conyers accumulating a significant amount of vacation leave which she had not taken and this became a contentious issue between her and persons in the Human Resources Department of the Bank.

16 Ms. Beneby, one of the witnesses for the Bank, stated in her evidence that the Bank's policy on vacation leave was set out in Articles 23.3. 23.4 and 23.5 of the IA. She explained that employees of the Bank applied electronically for vacation leave using a system called Lotus Notes indicating the dates and number of days requested by the applicant. She stated that there was “ ….a special notation placed on the form directly under the employee's signature which reminds the employee that it is mandatory for employees with 15 or more days to take 10 consecutive days leave during their vacation period...