Margo Mercedes Joy Albury v St. Andrews School Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 20 February 2013
• Docket Number: No.1370 of 2009

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Margo Mercedes Joy Albury

Applicant

and

St. Andrews School Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.1370 of 2009

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Dywan A.G.R. Rodgers Esq.

Counsel for the Respondent — Kenneth Lightbourne Esq.

DECISION AND REASONS

The Facts:

1 The Applicant commenced employment with the Respondent on September 1, 1998, in the capacity of Personal Assistant to the Principal of the Respondent.

2 By Originating Application she alleges that she was dismissed on August 31, 2009, but contrary to the provisions of the Employment Act, 2001 (“the Act”), she was not paid redundancy pay; or alternatively, she was not given due notice or pay in lieu thereof pursuant to sections 26 and 29 of the Act respectively.

3 Ex abundante cautela, at the suggestion of the Tribunal, the Applicant amended her application and further alleges that she was unfairly dismissed insofar as the Respondent refused to pay to her redundancy pay or pay in lieu of notice of termination of her employment pursuant to the said provisions of the Act.

4 In the circumstances, the Applicant alleges that she is entitled to redundancy pay with respect to her period of employment with the Respondent or payment in lieu of notice of termination thereof, and damages for unfair dismissal.

5 The Respondent avers that the Applicant was employed under a fixed term contract which expired on August 31, 2009; and in the circumstances the Applicant was not dismissed or made redundant, and is therefore not entitled to redundancy pay or payment in lieu of notice of termination of her employment or damages for unfair dismissal as alleged.

The Evidence:

6 The Applicant testified and produced several contracts of employment which she executed with the Respondent during her tenure of employment.

7 She maintained from the outset however that she was continuously employed with the Respondent from September 1, 1998 through August 31, 2009.

8 The Applicant was initially and substantively employed by the Respondent by letter dated July 13, 1998. That letter provided that the Applicant's period of employment was to be from September 1, 1998 to August 31, 2000.

9 The letter also expressly provided inter alia as follows:

“you, as the employee, are to indicate to the Principal no later than December 31, 1999 if you wish to renew this agreement. A formal decision either to renew or not to renew the agreement will then be communicated to you no later than February 15, 2000.”

“Hours of work

These are not set. Normally, you are expected to be in school everyday that school is open, except when you are taking approved leave. Other than that, given the cyclical nature of the demands of the position, you are expected to work an average of seven and a half hours each day and have lunch break (s) totaling at least one hour during the course of each day you are at work.

Your contractual hours of work must be agreed with the Principal on a termly (sic) basis. Time off in lieu will be given for any time that you are asked to work in the evenings (after 6:00pm.), at weekends, or during the periods at Christmas and the summer when the school is officially closed.”

“Conditions of service

The document “Conditions of Service for Staff members at St. Andrews School”, a copy of which is attached to this letter, forms an integral part of this agreement and your signature on this letter indicates your acceptance of these conditions.”

10 The “Conditions of Service” which were expressly incorporated by reference into the Applicant's said letter of agreement with the Respondent provided inter alia as follows:

“Superannuation

As from September 1, 1999 all staff members will be entitled to join the schools pension scheme, which is operated under the auspices of the Global Life Assurance Bahamas Ltd. Employees must contribute 3% of their basic salary. The school then makes a contribution equivalent to 7% of the employee's basic salary. In exceptional circumstances, the business manager may grant authority for an employee to belong to a different pension scheme.

Full details of the pension scheme may be obtained from the business office.

Health insnrance

The school offers health cover with Crown Life Insurance Company for all employees. Those staff members who avail themselves of this offer are expected to pay 50% of the costs of the premiums. The school then meets the other 50% of the costs. The spouse and up to two dependent children of staff employees may also be covered by this insurance on the same terms.

Full details of the health insurance scheme may be obtained from the business office.

Evaluation

All employees are evaluated annually by their direct supervisor. The supervisor indicates whether the evaluation is favourable or unfavourable. Normally, those employees who receive a favourable annual evaluation will be paid an annual increment until they reach step 12 on the scale…”

11 The Applicant testified that the provision in her initial contract requiring her to indicate to the Principal her desire to renew the same no later than December 31, 1999 was not insisted upon. Neither was a formal decision to renew her contract communicated to her “no later than February 15, 2000” as provided in the contract.

12 She said that she was simply issued with a new letter of agreement on August 2, 2000, in virtually the same terms as her initial letter of engagement save that the letter of August 2, 2000 stipulated that her new period of employment would be from September 1, 2000 to August 31, 2002; and the only other difference in this letter from the former was that it stipulated her salary increment.

13 The Applicant testified that she was issued four (4) more contracts of employment during her remaining tenure with the Respondent, and the requirement to formally indicate her request for renewal of same prior to the issuance thereof was never insisted upon.

14 Her remaining contracts of employment were with respect to the following periods:

Although these contracts were issued in a formal legal format as opposed to the prior two letter agreements, they were all substantially the same in content.

• (i) September 1, 2002 to August 31, 2004.

• (ii) September 1, 2004 to August 31, 2005.

• (iii) September 1, 2005 to August 31, 2008.

• (iv) September 1, 2008 to August 31, 2009.

15 The Applicant emphasized that she was continuously employed with the Respondent from September 1, 1998 through August 31, 2009, notwithstanding the routine issuance of the said contracts of employment. She noted in particular that two of the contracts were issued purportedly with retrospective effect: (a) She executed a contract on May 24, 2006 purportedly with respect to her period of employment between September 1, 2005 and August 31, 2008; and (b) she executed a contract on September 30, 2008 purportedly with respect to her period of employment between September 1, 2008 and August 31, 2009.

16 She said that she regarded the issuance of these contracts as mere formalities especially having regard to the fact that she was a member of the Respondent's pension scheme which was a long term plan. She was also a member of the Respondent's health insurance plan. As far as she was concerned, as long as she performed satisfactorily on the job, her continued employment with the Respondent was secure.

17 When pressed by the Tribunal she speculated that the only rationale for the Respondent to routinely issue short-term contracts to her might have been as an administrative tool for keeping track of salary scales.

18 She noted that all staff — expatriate as well as Bahamian were required to execute short-term contracts of employment with the Respondent. The contracts for the expatriate staff coincided with their work permits.

19 The Applicant testified that she was never told by the Respondent that at the end or expiry of each successive contract her membership in the pension and health insurance plans would cease. She did not have to rejoin those plans upon the renewal of each contract. Deductions were made from her salary via contributions to the plans continuously.

20 It was also her understanding that national insurance contributions continued unabated during the entire tenure of her employment.

21 The Applicant then drew to the attention of the Tribunal relevant provisions of the Respondent's pension plan as follows:

“3.3 Re-employment

If a member's employment is terminated and he is subsequently re-employed, he shall, upon such re-employment, be considered as a new employee for all purposes of the plan…

7. RETIREMENT DATE

• 7.1 Normal Retirement Date

  The normal retirement date for a member will be the first day of the calendar month coincident with or next following the member's 65 ^th birthday.

• 7.2 Early and Deferred Retirement

  A member may, with the consent of the employer, elect to retire within the 10 year period immediately preceding his normal retirement date or defer retirement beyond that date.”

22 The Applicant testified that the Respondent never regarded her as a new employee upon the execution of each successive contract pursuant to article 3.3 of the pension plan. The Respondent continued to make contributions to the plan on her behalf matching her own contributions as an existing employee during her entire tenure with the Respondent.

23 The Respondent also continued to make matching contributions to its health plan in accordance therewith during the entire tenure of the Applicant's employment.

24 The Applicant noted that she was fortified in her view that she was a long-term employee especially having regard to the fact that the normal retirement date as stipulated in the pension plan should have been her 65 ^th bir...