Osmond Cyril Sampson v Penn's Renovation and Construction Company Ltd and/or Edward Penn

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 20 July 1997
• Docket Number: No. 66 of 1997

Osmond Cyril Sampson

Applicant

and

Penn's Renovation and Construction Company Limited and/or Edward Penn

Respondents

No. 66 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

Applicant appeared in person.

No appearance by Respondents.

REASONS AND DECISION

1 Consideration of the Evidence:

2 The Applicant commenced employment with the Respondents sometime in April of 1995 initially as a Carpenter Helper and ultimately as “Head Electrician.”

3 The Applicant testified that he resigned from the Respondents in April 1996, because he discovered that although' they were collecting National Insurance Contributions from him, the contributions were not forwarded to the National Insurance Board.

4 At the time of his resignation from the Respondents, he earned wages at the rate of $8.00 per hour for each normal work day of 8 hours, i.e. $448.00 per week.

5 The Applicant stated that he was ill in November, 1995 and lodged a claim for sickness benefit with the National Insurance Board (“NIB”), but was told by NIB that no contributions were forwarded by the Respondents on his behalf.

6 The Applicant adduced evidence that NIB was contemplating prosecution against the Respondents. The Applicant produced a copy of an internal memorandum {the authenticity whereof was verified by the Tribunal} dated 2nd August, 1996 from Mr. Ronald M. Sutherland, Inspector, to Mr. Luther Johnson, then Executive Officer of the Inspectorate Department of NIB, in which Mr. Sutherland inter alia states: “…I have spoken with Mr. Edward Penn the owner of Penn Renovation, who instructed myself to refer the matter to Mrs. Forskin or Ms. Princess Penn, his daughter. I have tried on many occasions along with Mr. Donald McKenzie, Senior Inspector, and also both of us have tried individually, to get information on Mr. Sampson and other employees of Penn Renovations. When we spoke with Mrs. Forskin she was not helpful and refused to give us any information…I have spoken with Ms. Princess Penn, who is the daughter of Mr. Penn the owner of the business, she also was not very cooperative.

7 Sir, it is quite clear to me that Penn Renovations have no intentions of complying with our request.

8 It is my strong recommendation that this matter be referred to the Compliance Department for prosecution.”

9 On or: about 14th June, A.D., 1996, the Applicant attended at the premises of the Respondents, and was given and accepted a cheque in the amount of Four Hundred and Ninety-three Dollars and Thirty-two cents {$493.32} purportedly representing “severance pay” pursuant to section 24(1)(b) of the Fair Labour Standards Act, Chapter 295.

10 In accepting the said cheque, the Applicant signed a form of Release, purportedly releasing the Respondent, Penn's Renovation And Construction Company Limited from all claims. The precise wording of the form of Release is:

“I, Osmond Sampson, hereby acknowledge receipt of the attached cheque in the amount of Four Hundred and Ninety-three Dollars and Thirty-two cents {$493.32} being full and final settlement of any and all claims or commitments that I may have against Penn's Renovations And Construction Company.”

11 The Applicant stated that he was not under any duress by the Respondents when he signed the latter document. The Applicant was certainly not illiterate; he completed the 11th grade at the Government High School. The Applicant is thirty-two {32} years of age, and was not suffering from any infirmity such that he could not understand the import of the document which he signed; he admitted that he just did not read it before he signed it. He said that at the time that he signed it, he was only concerned with getting his severance pay from Mr. Penn, and cutting his ties with him altogether.

12 The Applicant stated that it was only after he left the employ of the Respondents that he remembered that they owed him with respect to overtime pay, and he claims the sum of Three Thousand Eight Hundred and Thirty-four Dollars {$3,834.00} representing overtime pay due and owing to him with respect to overtime worked as follows:

• {a} Three {3} hours overtime for each three {3} days of each of the last two {2} weeks of every month commencing August, 1995 through March, 1996 — $1728.00

• {b} Overtime worked for 6 ¹/₂ hours on each of approximately 3/4 of the Saturdays during the immediately aforesaid period, i.e. 27 Saturdays at 6 ¹/₂ hours each -$2106.00

13 Total: $3034.00.

14 The Applicant stated that after he left the employment of the Respondents, he immediately attempted to secure full time employment with several establishments including Sun International, Crystal Palace Hotel, and a yacht club in Cat Cay. He said that all of his attempts were vain, and he therefore decided to be self employed as a freelance electrician. He said that he secured his first substantial job on a private home in Fox Hill sometime in December, 1996.

Decision:

15 As a general rule, a Disclaimer or Release in the nature of the one executed by the Applicant would lawfully be construed literally and without exception in favour of the Releasee. In other words, the Releasor {in this case, the Applicant} cannot deny that he knew the import/meaning of the document except in the rarest of circumstances. In the case of Saunders v. Anglia Building Society [1971] AC 1004 3 All ER 961, HL, the House of Lords held...