Monika Stubbs v Zamar Group Companies Ltd

JurisdictionBahamas
CourtSupreme Court (Bahamas)
JudgeCharles J
Judgment Date30 September 2022
Docket Number2013/COM/lab/37/38/39/40/41/42/43/48/51/52/53/54/55/56/57/58
Between
1. Monika Stubbs
2. Bradford Roberts
3. Marvin James
4. Keith Louis
5. Jeffery Turner
6. Brian Davis
7. Devon Emmanuel
8. Bernard Paul
9. Terrell Kelly
10. Jerome Taylor
11. Lubin Bernadin
12. Glen Bethel
13. Terrence Brennen
14. Elron Munroe
15. Daniel Sears
16. Angelo Brown
Plaintiffs
and
Zamar Group Companies Ltd.
Defendant
Before:

The Honourable Madam Justice Indra H. Charles

2013/COM/lab/37/38/39/40/41/42/43/48/51/52/53/54/55/56/57/58

IN THE SUPREME COURT

Commercial Law Division

Employment law — Whether Plaintiffs are entitled to overtime and vacation pay — Whether Plaintiffs were in managerial or supervisory positions — Stare decisis — Statutory interpretation — Canons of construction — — Unfair Dismissal — Unilateral variation of contract — Employment Act, Ch. 321 ss. 8, 10

These actions were commenced by a Specially Indorsed Writ of Summons, filed by each of the Plaintiffs, on 1 August 2013. By an Order of Evans J (as he then was) dated 19 May 2014, the claim of each of the Plaintiffs was consolidated into one action. The action of the First Plaintiff, Monika Stubbs (“Mrs. Stubbs”), was heard on 12 and 13 May 2015. In a written Judgment rendered by Evans J on 22 February 2016, Mrs. Stubbs' claim for Wrongful Dismissal and Overtime Pay was dismissed with costs.

Prior to the trial of Mrs. Stubbs, the Eleventh Plaintiff, Mr. Lubin Bernadin, the Twelfth Plaintiff, Mr. Glen Bethel and the Sixteenth Plaintiff, Mr. Angelo Brown withdrew their actions against the Defendant.

The remaining (12) Plaintiffs (1) the Second Plaintiff, Bradford Roberts; (2) the Third Plaintiff, Marvin James; (3) the Fourth Plaintiff, Keith Louis; (4) the Fifth Plaintiff, Jeffrey Turner; (5) the Sixth Plaintiff, Brian Davis; (6) the Seventh Plaintiff, Devon Emmanuel; (7) the Eighth Plaintiff; Bernard Paul; (8) the Ninth Plaintiff, Terrell Kelly; (9) the Tenth Plaintiff, Jerome Taylor; (10) the Thirteenth Plaintiff, Terrence Brennen; (11) the Fourteenth Plaintiff, Elron Monroe and (12) the Fifteenth Plaintiff, Daniel Sears, alleged that they are either supervisors or managers and entitled to overtime pay, overtime pay and vacation pay, or they have been unfairly dismissed.

HELD: Finding that the Plaintiffs (i) Bradley Roberts; (ii) Keith Louis; (iii) Brian Davis; (iv) Bernard Paul; (v) Terrell Kelly; (vi) Terrence Brennen and (vii) Marvin James were either managers and/or supervisors and were therefore not entitled to overtime pay. Finding also that the Plaintiffs, Jeffery Turner and Devon Emmanuel were line staff and were therefore entitled to overtime pay and that the Plaintiffs, Jerome Taylor, Elron Munroe and Daniel Sears were not unfairly dismissed but were all entitled to notice pay, severance pay, vacation pay as well as overtime pay.

  • 1. The Court is now at large to consider who is a manager and/or supervisor and can even resort to dictionary meaning, no doubt, looking at the surrounding facts and circumstances and the evidence as a whole. Commonwealth Brewery Ltd. v Patrice Ferguson Ind. Trib. App. No. 86 of 2021 (Judgment delivered on 25 November 2021) applied. The Court of Appeal in Duran Cunningham v Baha Mar Development Co. Ltd SCCivApp No. 116 of 2010 not followed.

  • 2. On a balance of probabilities, the Court preferred the evidence of the witnesses for the Company to that of the Plaintiffs and their witness. The Court therefore found that the following Plaintiffs with the exception of Jeffery Turner and Devon Emmanuel were managers and/or supervisors:—(i) Bradley Roberts; (ii) Keith Louis; (iii) Brian Davis; (iv) Bernard Paul; (v) Terrell Kelly and (vi) Terrence Brennen. The Court also found that Marvin James who insisted that he was not a Manager was a Manager. Therefore, each of these Plaintiffs, having been unsuccessful in their respective claims, will have to pay costs to the Company taxed at $7,500 each.

  • 3. There are also three Plaintiffs namely (i) Jerome Taylor; (ii) Elron Munroe and (iii) Daniel Sears who alleged that they were unfairly dismissed. They were not unfairly dismissed but they are all entitled to notice pay, severance pay, vacation pay as well as overtime pay. With respect to costs, the Court orders that each party bear their own costs. The Court also makes a similar costs order with respect to Jeffery Turner and Devon Emmanuel. The Company conceded that they were not Managers.

Appearances:

Mr. Obie Ferguson QC and Mrs. Alva Stewart-Coakley for the Plaintiffs

Mrs. Lakeisha Hanna of Harry B. Sands for the Defendant

Charles J
Introduction
1

These actions, grounded in employment contracts, concern four main issues namely (i) whether eight of the Plaintiffs were managerial or supervisory employees; (ii) if they were not, whether they have proved that they are entitled to overtime pay; (iii) whether one of the Plaintiffs is entitled to overtime and vacation pay and (iv) whether three of the Plaintiffs were unfairly dismissed by their former employer, Zamar Group of Companies (“the Company”).

2

The actions were commenced by a Specially Indorsed Writ of Summons, filed by each of the Plaintiffs, on 1 August 2013. By an Order of Evans J (as he then was) dated 19 May 2015, the claim of each of the Plaintiff was consolidated into one action.

3

The action of the First Plaintiff, Monika Stubbs (“Mrs. Stubbs”), was heard on the 12 and 13 May 2015. In a written Judgment rendered by Justice Milton Evans (as he then was) on 22 February 2016, Mrs. Stubbs' claim for Wrongful Dismissal and Overtime Pay was dismissed with costs to be taxed if not agreed. At taxation, costs were agreed in the amount of Forty Thousand Dollars ($40,000.00), which remain due and outstanding from Mrs. Stubbs.

4

Prior to the trial involving Mrs. Stubbs, the Eleventh Plaintiff, Mr. Lubin Bernadin (“Mr. Bernadin”), the Twelfth Plaintiff, Mr. Glen Bethel (“Mr. Bethel”) and the Sixteenth Plaintiff, Mr. Angelo Brown (“Mr. Brown”), withdrew their actions against the Defendant. On 20 May 2020, a Notice of Discontinuance was filed with regard to these respective matters.

5

The remaining (12) Plaintiffs are (1) the Second Plaintiff, Bradford Roberts (“Mr. Roberts”) in Action No. 2013/COM/lab/00038; (2) the Third Plaintiff, Marvin James (“Mr. James”) in Action No. 2013/COM/lab.00039; (3) the Fourth Plaintiff, Keith Louis (“Mr. Louis”) in Action No.2013/COM/lab/00040; (4) the Fifth Plaintiff, Jeffrey Turner (“Mr. Turner”) in Action No. 2013/COM/lab/00041; (5) the Sixth Plaintiff, Brian Davis (“Mr. Davis”) in Action 2013/COM/lab/00042; (6) the Seventh Plaintiff, Devon Emmanuel (“Mr. Emmanuel”) in Action No. 2013/COM/lab/00043; (7) the Eighth Plaintiff, Bernard Paul (“Mr. Paul”) in Action No. 2013/COM/lab/00048; (8) the Ninth Plaintiff, Terrell Kelly (“Ms. Kelly”) in Action No. 2013/COM/lab/00051; (9) the Tenth Plaintiff, Jerome Taylor (“Mr. Taylor”) in Action 2013/COM/lab/00052; (10) the Thirteenth Plaintiff, Terrence Brennen (“Mr. Brennen”) in Action 2013/COM/lab/00055; (11) the Fourteenth Plaintiff, Elron Monroe (“Mr. Munroe”) in Action No. 2013/COM/lab/00056 and (12) the Fifteenth Plaintiff, Daniel Sears (“Mr. Sears”) in Action No. 2013/COM/lab/00057. Each of these Plaintiffs have filed separate actions as reflected above.

6

For present purposes, it is useful to categorize the Plaintiffs into 3 categories namely: (1) Group 1: those who claim overtime pay; (2) Group 2: those who claim overtime and vacation pay and (3) Group 3: Those who alleged that they were unfairly dismissed.

The issues
7

The parties have agreed that the following issues arise for determination namely:

  • 1. Whether or not the eight Plaintiffs namely (1) Mr. Roberts, Mr. Louis, Mr. Turner, Mr. Davis, Mr. Emmanuel, Mr. Paul, Ms. Kelly and Mr. Brennen have proved that they are entitled to overtime pay?

  • 2. Whether or not these eight Plaintiffs (above) were managerial or supervisory employees?

  • 3. Whether or not the Plaintiff, Mr. James has proven that he is entitled to overtime and vacation pay?

  • 4. Whether or not the Plaintiffs, Mr. Taylor, Mr. Munroe and Mr. Sears were unfairly dismissed?

The law
8

The Employment Act, Ch. 321A (“the Act”) came into force on 1 January 2002. Part II of the Act deals with standard hours of work.

9

Section 8 (1) (b) of the Act provides that the standard hours of work are forty hours in any week after 1 February 2003. Section 10 deals with overtime pay. It states:

Where an employee is required or permitted to work in excess of the standard hours of work, he shall be paid in respect of such work at a rate of wages not less than —

  • (a) in the case of overtime work performed on any public holiday or day off, twice his regular rate of wages;

  • (b) in any other case, one and one-half times his regular rate of wages:

    Provided that an employee in a tipped category in the tourism and hospitality industry shall be paid at his regular rate of pay other than in respect of his second day off in any week,

and any wages paid or to be paid as required by this Section are in this Act referred to as overtime pay.” [Emphasis added]

10

The category of workers who are exempted from receiving overtime pay as outlined above are those who hold a Managerial or Supervisory position. This is provided for in section 8(4) of the Act which states:

  • “(4) This Section shall not apply to a person who holds a Supervisory or Managerial position.”

11

The words “supervisory” or “managerial” were not defined in the Act. However, in the Bahamian case of Duran Cunningham v Baha Mar Development Co. Ltd. SCCivApp No. 116 of 2010, which was based on the Fair Labour Standards (Exceptions) Order (which had been repealed in 2009), Allen P. in delivering the Judgment of the Court at para 13 stated:

Admittedly, the Fair Labour Standards Act (Ch. 295), under which the Order was made was repealed in its totality by the Fair Labour Standards Act 2001 (Ch. 321A). However, by virtue of...

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