Jamal Saunders v Tycoon Management Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 22 May 2014
• Docket Number: IT/NES/1457 of 2010

Between:

Jamal Saunders

Applicant

and

Tycoon Management Limited

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1457 of 2010

New Providence

Present:

Messrs: Rawson McDonald of Counsel for the Applicant

Mr. Roberto Reckley of Counsel for the Respondent

DECISION

1 This matter came on for hearing on the 19 ^th November, 2013. There was little to no documentation. The Applicant's claim is for wrongful dismissal. An application was made pursuant to section 65(3) of the Industrial Relations Act Chapter 321 (“the Act”) to join James Edgar Curling which said application was acceded to by the court.

EVIDENCE OF THE APPLICANT:

2 The Applicant testified that he worked for Tycoon Management Limited. When he was terminated the name of the company was Tycoon Company Limited, however, when he first started there, the name of the company was Country Sand. The Applicant has always known the owner to be James Edgar Curling. The Applicant's employment commenced April 06 ^th, 2002 and he was terminated on January 03 ^rd, 2010. At the time of his termination, he was earning $17.00 per hour or $680.00 per week.

3 Upon termination, he was paid $6,210.00 for Notice Pay. This he says was for the period 2006 – 2010 however, he has not been paid for 2002 – 2006. He was also not paid vacation for 2002 – 2006. At this point, counsel for the Applicant advised the court that the claim was for vacation and salary for the years 2002 – 2006 which he calculated to be $11,993.16.

CROSS-EXAMINATION:

4 According to the Applicant he was never advised of any change in the set up of the operations but only heard rumors about new management. The Applicant's further evidence is that James Edgar Curling was the owner of the first company and also the owner of the new company. In fact the Applicant says that James Edgar Curling was the only employer he has had ever since he was there.

5 Under cross-examination, the Applicant confirmed that he commenced employment with Country Sand in 2002. As it relates to an employment form, the Applicant didn't recall filling out any such form. He says he was paid by wire transfer. When asked if he had any evidence of that he said he had the evidence at home. According to the Applicant, he was never terminated from Country Sand. In fact he says he was only terminated in 2010. He could not recall filling out any application for Tycoon Management Limited.

6 It was put to the Applicant by counsel for the Respondent that it was in 2006 that the Applicant's employment ended with Country Sand. However, the Applicant said that the name changed but the work existed as did the same operation. Counsel for the Respondent referred the Applicant to exhibit “J.S. 1”, a letter dated July 2009 addressed to “Whom It May Concern” which said letter is set out below:

TYCOON MANAGEMENT LTD.

Arawak Cay, P.O. Box SB-50808

Nassau, N.P., The Bahamas

Phone: (242)326-3285

Fax: (242)326-1617

Email: Tycoon.management@yahoo.com

July 29, 2009

To: WHOM IT MAY CONCERN

Re

Mr. Jamaal Saunders

This letter will confirm the employment of Mr. Jamaal Saunders as an employee of Tycoon Management Ltd.

Mr. Saunders' employment status is as follows:

POSITION: Heavy Equipment Operator

STARTING DATE: April, 2002

SALARY: $17.00 per hr. 40 hr. week schedule with frequent overtime

Should you require any additional information, I will gladly furnish it upon request.

Sincerely,

(Signature)

Capt. James Edgar Curling

President”

7 The above letter is as we say in law “Res ipsa loquitur, it speaks for itself. According to the Applicant, he was trying to obtain a loan. The Applicant was then referred to exhibit “J.S. 2” and asked which period did it cover and he responded by saying 2006 – 2010. Counsel then asked the Applicant if he thought he was employed by the same company and the court intervened by clarifying what the Applicant had said. What the Applicant said was that the work/operation continued. Counsel responded by saying that he was suggesting that Tycoon took on the work.

8 The Applicant explained that when he was hired by Country Sand in 2002, Mr. Curling hired him. It wasn't until 2010 that he received a letter of termination. He went on to say that Country Sand and Tycoon may be different names but the location, resources and the employer, Mr. Curling remained the same. When asked if he knew what Mr. Curling's title was, he said he only knew him as “the boss”.

9 The Applicant was then asked if he could say whether Tycoon Management was the owner of Country Sand however, the court again intervened and pointed out that that was a question which required legal knowledge. Counsel then asked the Applicant if he was always paid the same way and he said yes and went on to explain that from he began he was told to open an account with Royal Bank of Canada. When the letter was written to the bank (J.S. 1”), he was sure his employment began in 2002 and not in 2006. Counsel then suggested to the Applicant that he did fill in an application for Tycoon and that the Applicant was informed. The Applicant responded by saying that even if he did fill in an application form he was still working. Counsel for the Respondent requested that the matter be stood down for a few minutes and the court acceded to that request.

10 When counsel for the Respondent returned, he asked the Applicant if he was ever paid for his time with Country Sand (2002–2006) and he said “no sir”.

11 There was no re-examination of the Applicant.

EVIDENCE OF JAMES EDGAR CURLING:

12 Mr. Curling stated his occupation as businessman and that he was familiar with the Applicant. He confirmed that he was also familiar with Country Sand and Tycoon Management Limited. The witness went on to explain that he didn't know whether Country Sand was still on the books, but to his memory he owned 1/3 of 50% of Country Sand. Elliot Lockhart owned 1/3 of 50% Gurth Knowles (deceased) owned the other 1/3 of 50% and the Mosko Group of Companies owned the other 50%. He went on to explain that he was the one responsible for managing the company/operation. He confirmed that he hired and fired. He explained the operation as that of sand mining and distribution. When asked whether he had ever fired anyone, he said his position allowed him to fire people, but he never sent anyone home for good.

13 He explained his other duties as being totally responsible to pay the employees and make sure all of the equipment was in order. According to him the company was located at Arawak Cay. As it related to Tycoon Management Limited, he along with Bevereen Curling were the owners. However, he could not remember when the company came into existence but he knew that Country Sand was dissolved. He admitted to having knowledge of both companies. Counsel then asked the witness if Country Sand was located in the same place as Tycoon Management and he explained that Tycoon's office was not the same as Country Sand. Country Sand was in the Mosko Building on Bay Street and Tycoon was on Arawak Cay. According to the witness they didn't even use the same equipment. He explained that Country Sand ended up with no equipment because they had lost two barges and one crane because of ground swells and he thought that it may have been around this time that the Applicant was laid off for rudeness.

14 The witness confirmed that he put Tycoon together and he was responsible for the day to day operation. He explained that at least 50% of Country Sand's staff was taken on by Tycoon. He also confirmed that he was involved in hiring for Tycoon. When asked if the Applicant had filled out an application form he said he was almost certain. When asked if it would have been possible to be hired without filling out an application he said that it was possible.

15 According to the witness, the employees were made aware that they were working for a completely different company. He went on to state that the Applicant would have known where his pay cheque came from. Some of them would have been by direct deposit with Tycoon and some may have been in cash. The witness went on to say that the Applicant was a rude worker and that he had failed every drug test. The court intervened and pointed out to the witness that that was not something that was in issue in this matter. In fact that was the first time it was ever raised.

16 Counsel then asked the witness if the workers were paid when Country Sand became defunct and the witness said that “only Mosko could tell you that”. According to the witness, the employees were told that Tycoon was a new company.

CROSS-EXAMINATION:

17 Under cross-examination, counsel for the Applicant said that he was only interested in what happened to the payment for the years 2002-2006.

RE-EXAMINATION:

18 Under re-examination counsel for the Respondent was asked what happened to the documentation for Country Sand and Tycoon. The witness responded by explaining that the new owners tore down the building and destroyed...