Paradise Island Resort Ltd v Storr

• Jurisdiction: Bahamas
• Judge: Adams, J.
• Judgment Date: 30 January 1987
• Court: Supreme Court (Bahamas)
• Docket Number: No. 876 of 1986
• Date: 30 January 1987

Supreme Court

Adams, J.

No. 876 of 1986

Paradise Island Resort Limited

and

Storr

Appearances

Mr. Ferron Bethell for plaintiff (appellant).

Mr. Dion Hanna for defendant (respondent).

Industrial law - Appeal by the plaintiff against the Deputy Registrar's decision ordering that the plaintiff's originating summons be struck out with costs on the ground that it was an abuse of the process of the court — By an originating summons the plaintiff sought a declaration that the plaintiff's offer to the defendant of three months' salary on the termination of her employment was reasonable in the circumstances or a declaration as to the period of notice to which the defendant was entitled — Whether the Deputy Registrar's decision was correct — Finding of the court that the plaintiff had the right to terminate the contract of employment and a real dispute had arisen over the payment of money in lieu of reasonable notice — Plaintiff company had a right to ask for the declarations it sought — Appeal was allowed — Order by Deputy Registrar was set aside — Originating summons was restored — Defendant ordered to pay plaintiff's cost.

Adams, J.

1 This is an appeal by the plaintiff against the Deputy Registrar's decision ordering that the plaintiff's originating summons be struck out with costs on the ground that it is an abuse of the process of the court.

2 By an originating summons the plaintiff sought a declaration that the plaintiff's offer to the defendant of three months' salary on the termination of her employment was reasonable in the circumstances, alternatively, a declaration as to the period of notice to which the defendant was entitled.

3 The defendant through her counsel Dion Hanna and company entered a conditional appearance to the originating, summons but obtained no leave to do so. The file reveals that Dion Hanna and Company as attorneys for the plaintiff had applied for leave to be granted to the plaintiff to enter a conditional appearance end that leave was granted to the plaintiff to do so. I assume, however, that all this was inadvertently done. The plaintiff's summons was supported by an affidavit, in which it was stated inter alia:–

• “6. That the defendant, in her capacity as Guest Services Manageress, is responsible for social activities at Paradise Towers Hotel which include assisting front desk personnel and conducting periodic inspections of guest accommodations and public areas to ensure that the standards of the said Hotel are maintained.

• “7. That as Guest Services Manageress the defendant earned a weekly salary of Three Hundred and Thirty-five Dollars ($335.00).

• “8. That the said Contract did not contain any express or implied terms with reference to the termination thereof and, accordingly, the plaintiff could terminate the said Contract by giving the defendant notice of its intention so to do or by making a payment to the defendant in lieu of such notice.

• “9. That by letter dated the 20th day of March, A.D. 1986, the plaintiff gave the defendant notice that it had terminated her employment, such termination to have immediate effect. Further, the defendant was presented a cheque in the sum of $5,457.17, representing wages earned to the 23rd day of March, A.D. 1986, pro-rated Christmas Bonus pay, accrued vacation pay and three (3) months’ salary in lieu of notice. The defendant refused to accept the said cheque. A copy of the said letter is exhibited hereto and marked ‘P.P.S.1’.”

4 The letter of termination was dated 20th March, 1986 and was written to the defendant as follows:–

“Dear Ms. Storr,

“We met on the 6th December last year to discuss your position in light of an evaluation of your Department. I explained that your current salary was significantly higher than that which was determined to be reflective of the value of the Social Supervisor's position. It follows that your salary substantially exceeds that which ought to be paid to an Assistant Social Supervisor.

“As I had been unsuccessful in locating another position in the Company to which you could be transferred at the same salary level, I had no alternative but to reduce your salary to $200.00 per week. You were asked to consider that proposed course of action and let me know whether you were prepared to continue in your post on those reduced terms. To date I have not had the benefit of any input or comments from you other than your letter of the 6th December, 1985, requesting that I put the matters we discussed in writing.

“In all the circumstances, I have to inform you that in the absence of your agreement to accept a reduction in salary, your employment with the company is terminated with immediate effect. Enclosed is a cheque in your favour in the amount of $5457.17 representing your wages earned to 23rd March, 1986 ($335.00), pro-rated Christmas bonus pay ($71.32), accrued vacation pay ($837.51) and three (3) months salary in lieu of notice ($4,355.03) less appropriate National Insurance deductions of $141.69.

Yours faithfully,

Philip P. Smith, Director of Human Resources.”

5 The defendant filed an interlocutory summons in which she applied that the plaintiff's originating summons be struck out. This application was granted by the Deputy Registrar. The grounds of the application are set out in the summons. The defendant supported her application with an affidavit in which she stated inter alia:–

• “6. That I was not dismissed by the plaintiffs on the grounds contended in the affidavit of Philip Smith filed herein on the 23rd day of July 1986 and that the true reason for my dismissal was that I had refused to take a reduction in salary as...