Melonie Sherman v The Hotel Corporation of the Bahamas {d.b.a. Radisson Cable Reach Casino & Golf Resort [herein called “Radisson]}

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 07 August 1997
• Docket Number: No. 90 of 1997

In the Matter of The Industrial Relations Act

Melonie Sherman

Applicant

and

The Hotel Corporation of the Bahamas {d.b.a. Radisson Cable Beach Casino & Golf Resort [herein called “Radisson]}

Respondent

No. 90 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

The Facts:

The Applicant commenced employment on or about 10th November, 1983 as a cocktail waitress in the Beverage Department of the Respondent.

When she commenced employment she was in the Bargaining Unit of the Bahamas Hotel Catering And Allied Workers Union {hereinafter called, “BHCAWU”}, by virtue of a Recognition Agreement dated March, 1969, between The Bahamas Hotel Employers' Association {hereinafter called, “BHMA”} [of which the Respondent is a member] and BHCAWU, and hence subject to the Industrial Agreements thereunder during her tenure of employment as long as she remained a member of the said Bargaining Unit.

The Applicant was promoted to hostess of the Beverage Department and when this position became redundant, she became Captain in the Banquet Department, and remained in this position for less than one {1} year, and thereafter was transfered to Room Services and Guest Services respectively as a Guest Services Representative. She was later assigned to duties as a Reservations Clerk, and remained in this position until she was promoted by the Respondent to the management position of Income Auditor in April, 1994.

The Applicant claims that by virtue of her tenure of employment with the Respondent, and under the terms of the current Industrial Agreement, she was entitled to Twenty-two {22} days vacation per annum, and that the Respondent cannot lawfully vary her vacation entitlement downwards without her consent, notwithstanding her promotion by the Respondent to management.

The Applicant further claims that the relevant Industrial Agreement is not lawfully binding upon the purported parties thereto, and hence the terms and conditions purportedly agreed to thereunder must lawfully be deemed to have been incorporated in the Applicant's Contract Of Employment with the Respondent.

Except for certain employees who by virtue of the Purchase Agreement whereunder the Respondent purchased the subject property, all non-union employees of the Respondent were at ail material times entitled to Fifteen {15} days annual vacation from the Respondent.

The Applicant claims the sum of One Thousand One Hundred and Four Dollars and Eighty-three cents {$1,104.03} representing one weeks vacation owed respectively for 1995 and 1996.

Representative of Applicant: Mr. Obie Ferguson Jr.

Counsel for Respondent: Mrs. Rionda Godet

DECISION AND REASONS

Consideration of the Evidence:

The Applicant testified that when she was promoted in March or April of 1994, she recalled meeting with Ms. Joyce Treco of the Human Resources Department of Radisson. She said that Ms. Treco only informed of her of her new responsibilities as Income Auditor, and that she never mentioned benefits. She said that she was later informed by Mrs. D. Coakley {then Executive Director of Human Resources} and Mrs. Barnes {then Assistant Director of Human Resources}, that in her new position, she would not receive holiday pay, birthday pay and overtime pay, because she was being promoted from “line staff” to a managerial position.

She said that she was never informed of any decrease in vacation entitlement.

The Applicant further informed the Tribunal that she remembered seeing or receiving a memorandum from BHMA addressed to “all managerial, supervisory, and Schedule “B” workers {Bargaining Unit}” mentioning inter alia that that effective October 1, 1996, and pursuant to article 9 of the Industrial Agreement, the vacation entitlement of employees with over ten {10} years of service with the Respondent would be five {5} weeks.

Mrs. Barbara Barnes, Executive Director of Human Resources of Radisson, testified that in late March or early April of 1994 she met with the Applicant and informed her of her entitlements upon promotion to the managerial position of Income Auditor. She said that she informed the Applicant that she would no longer be entitled to holiday pay and birthday pay, and that her vacation entitlement would be fifteen {15} days per annum instead of Twenty-two {22} as was her entitlement when she was in the Bargaining Unit of BHCAWU. She said that she informed the Applicant about sick benefits, and about the Group Insurance Plan.

Mrs. Barnes said that the Applicant expressed disappointment about not being able to get her usual four {4} weeks vacation, but she {Barnes} said that she explained to the Applicant that the other perks of a management employee more than made up for that differential.

She said that she explained to the Applicant that inasmuch as her promotion was effective in 1994 and she was under the ‘umbrella’ of BHCAWU for the first part of that year, she would still be entitled to her four {4} weeks vacation with respect to 1994, but thereafter, her entitlement would be Fifteen {15} days.

She said further that she informed the Applicant that if she worked overtime, such overtime could accrue towards additional days vacation.

Mrs. Barnes said that in 1995, the Applicant's overtime did amount to an extra weeks' vacation, and she did in fact yet four {4} weeks vacation.

Mrs. Barnes testified that she was not aware of an Industrial Agreement between the Respondent and BHMA. She said that she also explained the new terms and conditions to the Union's shop steward, Mr. Dwight Smith, and she informed the Applicant of the alternative if she didn't find the new terms and conditions acceptable, viz., that she could remain in her position as Reservations Clerk under the aegis of BHCAWU and be entitled to four {4} weeks vacation inter alia.

Lastly, Mrs. Barnes testified that the Applicant accepted the new position of Income Auditor on the understanding inter alia that her vacation entitlement would be three {3} weeks per annum.

Mr. Oswald Marshall, Operations Director for Family Island Properties of the Respondent testified that a Recognition Agreement was executed between BHMA and the Respondent with respect to all of the Respondent's hotel properties.

He said that from time to time, the Respondent entered into agreements with BHMA with respect to its management employees; and that there were other times that there were agreements or understandings concluded relative to individual differences in the work place.

With reference to a letter dated 25th September, 1996 from the Financial Controller/Secretary of the Respondent to the President of BHMA, he said that the letter merely recorded the unilateral decision of the Respondent inter alia to increase the benefits of its management staff of Lucayan Beach Resort & Casino and Radisson Cable Beach Resort, It was noted that the vacation entitlement at Radisson Cable Beach Resort was to be the same as at Lucayan Beach Resort effective October 1, 1996.

Mr. Marshall testified further however, that there was no Industrial Agreement concluded between the Respondent and BHMA.

Decision:

1 The Representative of the Applicant relies fundamentally upon the opinion expressed by Senior Justice Malone in the case of Paulette Smith, Claudia McNeil & Thomas Albury v. Bahamas Hotel Catering and Allied Union; Freeport Hotels And Restaurants' Employers' Association; Atlantic Beach Hotel, Princess Casinos & Princess Tower Hotel and The Attorney General of The Commonwealth Of The Bahamas — Supreme Court, Equity Side, No. 105/1985.

2 Mr. Justice Malone in relying upon...