Linda Gray (Present) v Bahama Papa (T/A) Papa Johns Pizza

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 13 January 2011
• Docket Number: IT/NES/1295 & 1304 of 2009

Between:

Linda Gray (Present)

Shakeria Newbold (Absent)

Joycelyn Johnson (Present)

Katisha Bannister (Absent)

Laketta Gibson (Absent)

Sherene Whylly (Present)

Fritz Pierre (Present)

Applicants

and

Bahama Papa (T/A) Papa Johns Pizza

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1295 & 1304 of 2009

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Applicants in Person

Mr. Charles Mackay, Counsel for the Respondent

DECISION

1 This matter was set down for hearing on September 20 ^th and 21 ^st, 2010. The Respondent was served via its attorneys of record. However, the Respondent nor its attorneys attended the hearing on the 20 ^th September, 2010. The Tribunal decided to begin hearing the evidence of the Applicants by virtue of Section 59 (1), (a) which reads as follows:

Section 59 (1)(a)

“In addition to the powers conferred on it under the foregoing provisions of this Act the Tribunal may —

a) proceed to hear and determine any question arising in connection with a dispute in the absence of any party who has been duly summoned to appear before the Tribunal and has failed to do so;

2 Therefore the Tribunal took evidence on September 20 ^th, 2010 from some of the Applicants, who presented themselves on the 20 ^th, September, 2010. One of the Applicants, Mr. Fritz Pierre had filed a separate Originating Application. Invoking section 17(1)(a) of the Industrial Relations (Tribunal Procedure) Rules, 1997, the Tribunal by way of a letter dated 28 ^th July, 2010 wrote to counsel for the Respondent and all of the other Applicants asking them to show cause why the Originating Application 1304 of 2009 should not be heard with Originating Applications 1295 of 2009. Counsel for the Respondent replied by letter dated 27 ^th August, 2010 agreeing to the consolidation.

Section 17(1), (a)

“Where, in relation to two or more originating applications pending before a tribunal it appears to the tribunal, on the application of a party made by notice to the secretary in Form N in the schedule or of its own motion that —

• (a) a common question of law or fact arises in some or all the originating applications;

• (b) the relief claimed in some or all of those originating applications is in respect of or arises out of the same set of facts; or

• (c) for any other reason it is desirable to make an order under this rule,

  the tribunal may order that some (as specified in the order) or all of the originating applications shall be considered together, and may give such consequential directions as may be necessary.”

3 Thus actions 1295/09 and 1304/09 were considered together.

4 The first Applicant giving evidence was Linda Gray. Ms. Gray testified that she began employment with the Respondent in August, 2005 as a. cashier/crew member. She was subsequently promoted to manager in or about 2007 and remained in that capacity until the company closed on December 8 ^th, 2008. At the time of closing Ms. Gray's salary was $300.00 per week. There were no other benefits such as health insurance or bonuses. There was also a written contract of employment but Ms. Gray says she was never given a copy of the contract.

5 According to Ms. Gray, she looked for new employment in or about February of 2009 and found a cashing job at Meat Max on Carmichael Road. Her new salary was $180.00 per week. However, she only remained there until April 2009 when she was called into Wendy's as an assistant manager where she then earned $350.00 per week.

6 Ms. Gray says that she was told by Mr. Wesley Campbell that Mr. Vaughn Higgs was the owner of the business. According to her, Mr. Higgs came to the establishment from time to time for pizza and would pay with meal vouchers which he would have signed. Her evidence is that whenever Mr. Higgs came in, everyone would say that's Mr. Higgs right there. It is also Ms. Gray's evidence that Mr. Higgs also signed their pay cheques.

7 Ms. Gray did in fact bring along with her some of her pay slips which when examined by the Court were pay statements which showed that salary payment was made by way of direct deposit and not by signed cheques. A copy of one of the pay slips is produced below:

“BAHAMA PAPA

SALARY NOTIFICATION

This is a statement of your earnings as they have been deposited to your account.

Linda Gray

Nassau, Bahamas

8 It is Ms. Gray's evidence that she had previously worked at Church's Chicken and was transferred to Papa John's when Church's Chicken closed. Most of the Church's employees were transferred before Church's closed. Some persons just quit. According to Ms. Gray, one Mr. Andrew Thompson was the owner of Church's Chicken or had the majority shares in it and when Papa John's opened, Mr. Vaughn Higgs took over. It was her understanding that Mr. Higgs also owned Nassau Paper Company.

EVIDENCE OF JOYCELYN JOHNSON

9 Ms. Joycelyn Johnson commenced employment with Papa Johns on July 27 ^th, 2004 as a Customer Service Representative (CSR). Her salary was $180.00 per week. Shortly thereafter she was promoted to Assistant Manager in 2005. She then earned a salary of $275.00 per week with no other benefits. As far as Ms. Johnson was concerned, Mr. Vaughn Higgs was the owner and operator of the business as this is what was told to them by both Messrs. Wesley Campbell and Nicholas Nixon. She said she met him on one occasion when he came in to purchase pizza and she assumed that it was Mr. Higgs as he presented coupons. According to Ms. Johnson, Mr. Vaughn Higgs signed their, cheques. It is Ms. Johnson's evidence that she parted company with Papa Johns the day on which they closed.

10 Ms. Johnson's evidence also is that she was not paid monies when the company closed and she was seeking compensation for the 4 ¹/₂ years she worked with the company. She did not seek employment after the company closed down because she found out she was pregnant.' Ms. Johnson also produced copies of some of her pay slips which were the same as Ms. Gray's, showing direct deposit. Ms. Johnson was promoted from Assistant Manager to Store Manager in 2007 and earned $350.00 per week upon promotion. Ms. Johnson commenced employment with Marcos Pizza on April 26 ^th, 2010 having not worked in between the closing of Papa John's and her new employment.

EVIDENCE OF SHERENE WHYLLY

11 Ms. Whylly commenced employment with Papa John's Pizza in 2004. She thinks it was in the month of April in 2004 as an Assistant Manager with a salary of $250.00 per week. She was subsequently promoted to Store Manager earning a salary of $325.00 until 2007 and thereafter earning a salary of $350.00. She says that in 2004 she knew that Mr. Andrew Thompson was the majority shareholder because Mr. Thompson himself interviewed her along with Ms. Catherine Nelson. She says that she later learned that after Mr. Thompson gave up his shareholding, Mr. Vaughn Higgs took over. This she learned from Ms. Nelson, Mr. Wesley Campbell and Mr. Nicholas Nixon. She said that Ms. Nelson was really in charge.

12 It is her further testimony that she was not given any warning of the closing. In fact she says that the day they closed she was in full uniform ready to work. Additionally, she says she was not paid anything, Ms. Whylly testified that on the Saturday before the company closed,. Mr. Campbell instructed her to notify the staff at South Beach that there would be a meeting at the Village Road Store on the following Sunday morning at 10:00 a.m. and all staff were to attend.

13 Ms. Whylly attended the meeting in full uniform as she was scheduled to work at the Village Road Store that Sunday. Onge everyone arrived at the Village Road Store Mr. Nicholas Nixon and Mr. Campbell were in attendance. Mr. Campbell addressed the staff by saying “as you know. today will be the last day for Papa John's Stores to be opened in the Bahamas.” Everyone started to get upset. They asked why? But were not given a good answer. Mr. Campbell told them to ask Mr. Higgs. However, Mr. Higgs wan not present at the meeting.

14 According to Ms. Whylly, the staff wanted to know why couldn't they have been told in advance. She says she knew something was wrong because of how they were running the stores. She noticed that they were only bringing in a small amount of products and they kept running out of stuff according to her but she says money was making. Her last day was in December, 2008. She, like the others was not paid anything. She did not seek other employment right away because she had to have surgery. She began new employment on April 20 ^th, 2009 at Lyford Cay as a Housekeeper at a salary of $350.00 per week and was still employed there at the time she gave evidence. She like the other witnesses is seeking compensation and notice pay. Ms. Whylly worked for Papa John's for four (4) plus years.

15 Under cross-examination by counsel for the Respondent who only attended on the second day scheduled for the hearing, and in response to the question “you said Mr. Higgs was the owner, Did you see any documents?”, Ms. Whylly said that she had to wait for one week to receive a vacation cheque because according to Nicholas Nixon, he had to wait because Mr. Higgs was off the Island. Counsel for the Respondent asked Ms. Whylly which account was the cheque drawn on and she responded by saying First Caribbean Harbour Bay Branch, with the account holder being Bahama Papa Limited. Counsel for the Respondent then asked Ms. Whylly how could she therefore come to the conclusion that Mr. Higgs was the owner because it would follow from her evidence that Mr. Higgs was signing on behalf of the company. Ms. Whylly responded by saying that the very top told her that, Mr. Nixon, Mr. Campbell and Ms. Nelson. They all told her that Mr. Higgs was the top shareholder. On the Monday after the closing she says a few of them went to Nassau Paper Company to see Mr. Higgs and he told them that there were a couple shareholders. He admitted to being...