Murine Ferguson v Coral Harbour Beach House & Villas

• Jurisdiction: Bahamas
• Judgment Date: 01 May 2002
• Docket Number: No. 584 of 2001
• Court: Industrial Court (Bahamas)

In the matter of the Industrial Relations Act

Murine Ferguson

Applicant

and

Coral Harbour Beach House & Villas

Respondent

No. 584 of 2001

INDUSTRIAL TRIBUNAL

NASSAU

Applicant unrepresented.

No appearance by or on behalf of Respondent.

DECISION AND REASONS

The Facts and Evidence:

1 Whereas pursuant to Rule 8(1) of the Industrial Relations {Tribunal procedure} Rules, 1997, both parties were duly served with Notices of Hearing relative to the commencement of the Hearing of this matter on Wednesday May 1, 2002 at 10:00 a.m. in court No. 1; and

2 Whereas the Respondent did not appear as scheduled and no reasonable excuse or excuse whatsoever was tendered by or on behalf of the Respondent for its failure to appear as aforesaid

3 Pursuant to section 53F(1) (a) the Tribunal proceeded to hear this matter in the absence of the Respondent.

4 The Applicant, aged 35, commenced employment with the Respondent as a barmaid in March of 1998.

5 She testified that on Sunday evening July 22, 2001, Mr. E. V. Johnson, the beneficial owner of the Respondent hurled a number of obscenities at her as he accused her of not keeping the bar properly stocked with Heineken beer.

6 She testified that it was not her responsibility to keep the bar stocked with Heineken or any other liquor; it was Mr. Johnson's responsibility to order for the storeroom.

7 In the presence of a customer, she said that he told her to “get out of [his] fuckin' place”.

8 She told him that she was not going to leave until he paid her. He refused to do so but ultimately his son paid her $120.00 with respect to the week ending the previous day {Saturday}.

9 The Applicant claims damages for wrongful dismissal by the Respondent together with outstanding and due vacation pay, holiday pay, pay with respect to working on days off, and pay with respect to working double shifts.

10 The Applicant testified that in 1999 she received two weeks' paid vacation from the Respondent. She did not get any more vacation. She said further that with respect to ten {10} holidays that she worked during her tenure of employment, she was paid at the rate of one and a half times her regular pay, and not twice her regular pay as required by law.

11 The Applicant produced pay slips to the Tribunal indicating that in some instances she worked seven days per week as follows:

12 June 8 – June 15, 1999.

13 September 25 – October 1, 1999.

14 March 14 – March 20, 1999.

15 May 1 – May 7, 1999.

16 She also produced pay slips indicating that whenever she worked on holidays she was paid at the rate of one and a half times her regular pay.

17 Finally she testified that she worked double shifts during the following periods for which she received

Decision:

18 First of all it is clear to the Tribunal that the Respondent summarily dismissed the Applicant in the most demeaning fashion.

19 Even if the beneficial owner of the Respondent had not purported to fire the Applicant, his disgusting obscenities were tantamount to constructively dismissing her.

20 Constructive dismissal is the term applied to a resignation by the employee in circumstances such that he or she is entitled to terminate the contract without notice because of the employer's conduct. In Western Excavating {E.C.C.} v. Sharp [1978] I.C.R. 221, the Court of Appeal affirmed that the question whether an employee is entitled to...