Jeronamo Ellis v Bahamas Vacations International (Nassau) Ltd

• Jurisdiction: Bahamas
• Judge: Keith H. Thompson
• Judgment Date: 08 June 2012
• Docket Number: IT/NES/1144/08
• Court: Industrial Court (Bahamas)

Between:

Jeronamo Ellis

(Applicant)

and

Bahamas Vacations International (Nassau) Ltd.

(Respondent)

Before:

His Honour Keith H. Thompson, Chairman

IT/NES/1144/08

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Glendon Rolle of Anthony Thompson & Co., Counsel for the Applicant;

Mr. Philip McKenzie of Davis & Co., Counsel for the Respondent

DECISION

1 The Applicant in this matter filed an Originating Application dated the 19 ^th March 2008, which was re-issued by the Tribunal 18 ^th March, 2010, for wrongful dismissal.

2 The trial commenced on the 1 ^st November, 2010. The parties requested that the matter be stood down for them to further discuss the matter with a view to resolution. Unfortunately, there was no resolution. Counsel for the Applicant having just been retained, and not having had any time to be properly instructed requested an adjournment.

3 The Tribunal acceded to Counsel for the Applicant's request and ordered that both sides provide the Tribunal with skeleton arguments on or before the 15 ^th November, 2011.

4 The matter was scheduled to continue on 23 ^rd February, 2011, however, Counsel for the Respondent had advised counsel for the Applicant in advance that he was going to be requesting an adjournment. The Tribunal acceded to this request due largely in part to the fact that the Tribunal itself was caught off guard by the drastic change in the claim of the Applicant from wrongful dismissal to unfair dismissal. The Tribunal, having regard to two of the main tenets of its process, fairness and justice acceded because the Respondent must know what case it has to meet.

5 The Tribunal in an effort to accomplish its task to prevent the practice of catching ones opponent by surprise ordered skeleton arguments to be exchanged between the parties within three weeks from the 23 ^rd February, 2011, and within three weeks thereafter a defense was to be filed and served by the Respondent. Additionally, one (1) week after February 23 ^rd 2011, the amended Originating Application was to be filed and served on the Respondent and the Tribunal. There was also to be an agreed bundle of documents.

6 On April 14 2011, the matter came on for hearing and the Applicant was sworn in and gave his evidence-in-chief. The Applicant testified that he was employed with the Respondent in the position of an Off Site Free Lancer. His responsibility was to book tours to see the sales presentation. The Applicant says that he was offered the position and he recalled that he was offered another position in or about 2003/2004. The position was that of Freelance Offsite Location Supervisor.

7 The Applicant recalled that he had signed two contracts. They were different and one was in 1999 and the other in 2003 or 2004. The Applicant was then directed to tab 1 of the Applicant's bundle of documents and asked whether he recognized the document. The Applicant confirmed that it was in fact the employment agreement from 2004 and he confirmed his signature at the end of the document. This was in fact the second contract.

8 The Applicant explained the difference between the 1999 contract and the 2004 contract. It is his evidence that in the 1999 contract he had to produce a minimum of 5–7 hours a week and earn $150.00 per tour and he would then receive 3% of the sale. However, the Applicant said that he was only receiving 2% and not the 3% as set out in the contract. You had to be responsible for your own tour and make sure that the people get on the bus to the resort.

9 In the 2004 contract he said he was responsible for everyone's tours that came under freelance and he had to make sure that the tours got to the door and also make sure that the freelancers got home at the right time. Additionally, he says that he also had to make sure that while these persons were at work that they knew the product they were selling.

10 The Applicant says that he had to report to the office at 8:30 a.m. everyday working until 12:00 midday and returning at 5:00 p.m. until all shifts were over.

11 The farther evidence of the Applicant was that at least three days out of the week he had to put the freelancers in the bus and drive around looking for tours. The Applicant says at night he also had to play the role of security and ensure that the Respondent's customers were not stolen by the time share companies. The Applicant's evidence is that he was offered compensation for being Off Site Marketing Supervisor however, there was no base pay but there was a percentage of .50% of all net sales, gas allowance and phone cards. The Applicant says he was also supposed to be paid additional monies for the security part of it but he was never paid for this.

12 The Applicant testified that vacation was a part of his arrangement with the Respondent. The way it worked was that whatever was in the pipe line the Applicant was to get a certain percentage of that for vacation. The Applicant's farther evidence is that he was terminated in October 2002 and up to the time he was terminated he was still only receiving the 2% and $300.00 as set out in the first contract, but the Applicant says he was carrying out both duties. The Applicant says. he received an additional payment on the .50 but only under the second contract. He would receive this payment on the 15 ^th and 30 ^th of each month.

13 The Applicant further testified that as a part of his job he visited Aruba. The purpose of the trip was to conduct some training for the Respondent. One Carmen Scaroni and a Ms. Telvern Dean requested that the Applicant go on the trip according to him. In fact, it is the Applicant's evidence that Ms. Scaroni said that she wanted him to take the training skills he used in Nassau with him. The arrangement arrived at with Telvern Dean was that the Applicant would be paid. $1,500.00, receive three (3) meals per day and that the training would last for nine (9) days. In addition to this the Applicant's evidence is that he was to continue receiving his override from the Nassau team. The Applicant says that he did use his training skills while in Aruba however, he was never paid.

14 The Applicant explained that as it relates to the gas and phone cards, he was initially receiving $160.00 every two weeks. However, according to him, gas was to be separate. The initial payments were by cheque and later on they started using the petty cash. The marketing director was responsible for going to a Ms. Paulette Smith for the monies. The Applicant identified Ms. Paulette Smith as the Financial Comptroller of Bahamas Vacations. According to the Applicant, Ms. Smith kept the supplies in her office. It is the further evidence of the Applicant that guests would make payment for trips to the in-house girls or whoever booked the tour. The payment however, would only be a deposit. The Applicant's evidence is that if and wherever funds were paid to him he would give a receipt from receipt books which were provided by Bahamas Vacations. Once in receipt of the funds, the procedure was that you would call the power boat or dive and make the arrangements for the guests. The 10% or 20% deposit is usually for whoever books the tour.

15 The Applicant went on to explain that there is a difference between an Off Site Marketing Supervisor and that he performed both jobs up to his termination. The Applicant was questioned about an incident which would have taken place just before his termination and he explained that a guest wanted to do the Bahama Dive Programme and a fishing trip. According to the Applicant he went ahead and booked the necessary excursions for the guest but the fishing trip was suppose to be early the following morning and he believes that the guest may have had a little too much to drink the night before and missed the fishing trip. The guest having missed the fishing trip started asking questions at the desk as to where he could find the Applicant and where was the excursion booked. The Applicant went on to testify that the guest said that when he went outside some persons told the guest that the Applicant had robbed him, didn't work around the hotel and that the guest wouldn't see him anymore.

16 The Applicant says that after he had booked the dive and fishing trip he stayed at the desk for about two more hours and he left to go home. The whole deposit was about $200.00 +. The Applicant put the money in his pocket after giving the guest a receipt. Upon arriving at work the following day, the Applicant says that he met his immediate Supervisor Ms. Tanisha Pinder, who informed him that a guest was looking for him. When the Applicant asked which guest, he was told a bright man and his girlfriend from the Sea Tower. According to the Applicant, he asked Ms. Pinder if the guest had missed the fishing trip and she said “I guess so”. The Applicant explained that usually when a trip is missed the free lancer or whoever books the trip is responsible to give the money back. Ms. Pinder asked the Applicant if he had the money on him right then, but he didn't have it on him at the time but offered to bring it when he came back for his evening shift. After dropping off some guests the Applicant says that he came back in the afternoon. While walking up the stairs in the lobby, he saw Ms. Pinder at the front desk again and she said to him that “this thing done gone too far, the man already gone to security and ting saying Jeronamo rob him” The Applicant says that Ms. Pinder then told him that he better go to Ms. Dean's office. The Applicant went to Ms. Dean's office. On the way to Ms. Dean's office one of the security officers who was on the opposite side of the escalator said he needed to see him. The Applicant told him he was on his way to his boss's office and the security officer said that he was coming down there right then.

17 The Applicant's further evidence is that when he reached in the sales bay area, Ms. Dean told him to go to...