Patrice Monzell Riley v Island Hotel Company Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 26 May 2011
• Docket Number: No.1117 of 2007

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Patrice Monzell Riley

Applicant

and

Island Hotel Company Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.1117 of 2007

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Obie Ferguson Jr. & Co. ( Ms. Lakeisha Strachan at trial & Obie Ferguson Jr. rendering closing submissions).

Counsel for the Respondent — Ms. Camille Cleare.

DECISION AND REASONS

The Facts:

1 The Applicant alleges that she commenced employment with the Respondent on October 13, 1998 and she ceased employment on June 21, 2007.

2 At the time of the termination of her employment she alleges that she was employed in the capacity of Technical System Manager with the Respondent at a salary of $826.92 per week.

3 She says that she was wrongfully dismissed by the Respondent insofar as the Respondent failed to give to her payments in lieu of notice in accordance with the law.

4 The Applicant claims the following from the Respondent:

“Notice Pay (4 weeks)	3,307.68
Salary for years employed —— Ten months (40 weeks)	30,076.80
Vacation (3 weeks)	2,480.88
TOTAL	$38,865.36
Less Amount Paid	2,555.35
Total owed to Applicant	$36,310.01”

5 The Respondent paid to the Applicant the sum of $2,555.35 in respect of her termination of employment purportedly representing payment due to her upon termination of employment including notice pay, accrued and outstanding vacation pay and salary owed.

6 The Respondent avers that the Applicant was not continuously employed by it from October 13, 1998 through June 21, 2007 as alleged.

7 The Respondent alleges that by letter dated June 20, 2005, the Applicant resigned from the Respondent and commenced employment with Harborside Resort at Atlantis on or about July 4, 2005.

8 The Respondent further alleges that the Applicant resumed employment with it on February 12, 2007 and continued in its employ until June 21, 2007.

9 In the circumstances the Respondent alleges that it did not wrongfully dismiss the Applicant and does not owe to the Applicant any money with respect to her termination of employment or otherwise.

The Evidence:

10 The Applicant testified that she commenced employment with the Respondent in October of 1998 in the capacity of a ‘Holly-can-fix-it’ — a Mane' of all trades as it were. She assisted with air conditioning, plumbing, electrical and carpentry work etc.

11 She said that she received a promotion to Systems Technician, as she recalled, two (2) years after commencing work with the Respondent.

12 She later sought further promotion because she had arranged for a home to be constructed.

13 She said that she went to Mr. Nelson O'Kelly, her Department Head, and inquired as to whether there were any other job openings at the Respondent. He told her that he would check and get back to her. This was around May or June of 2005.

14 Mr. O'Kelly soon informed her that there was an opening for a shift engineer at Harborside Resort at Atlantis.

15 The Applicant testified that she went to Harborside Resort and spoke with the head of the Engineering Department, Mr. Lionel Turnquest. He gave her the position and told her to commence work on July 4, 2005.

16 She said that she went back to her previous manager, Mr. Kevin McKenzie and informed him that she got the position as a shift engineer at Harborside Resort. They both sat down and completed the appropriate Employee Action Form headed “Kerzner International Limited Employee Action Form” which indicated inter alia that she was being “transferred” to Harborside Resort.

17 Both she and Mr. McKenzie signed the Employee Action Form on June 20, 2005. The form was then countersigned by the Vice President or Senior Vice President on June 21, 2005.

18 She said that her Department Head, Mr. O'Kelly, then informed Mr. McKenzie that she would have to do a letter of resignation from her incumbent position. She did so accordingly.

19 The Applicant testified however that it was always her understanding that she was being transferred from one position to the other.

20 She said that when she commenced work at Harborside Resort she used the same uniform that she used in her prior position — grey pants and grey and white striped shirt except that the current uniform was marked “Engineering Department” as far as she could recall.

21 She said that she was paid an extra $40.00 for lunch because they told her that it would take too long to catch the shuttle to go from Harborside to the main hotel to eat lunch in Star's Restaurant or any other restaurant over there. Her lunch break was only half an hour.

22 The Applicant testified that when she transferred to Harborside Resort she did not receive a handbook. She was not certain that one existed for Harborside.

23 She said that she was paid by Kerzner International Bahamas Limited in her previous job and in her job at Harborside Resort.

24 She noted also that when she transferred to Harborside, no one from its Payroll Department asked her for any further information relative to her bank account for the purpose of transferring her salary.

25 She testified that Harborside is a time share operation but that it also rents rooms if things are slow at Atlantis.

26 She said that while working at Harborside, she had to swipe her card if she attended seminars and ate lunch at the hotel. The sum of $8.00 would be deducted from her $40.00 lunch allowance in those instances.

27 She said that when she applied for the position at Harborside Resort, she was not asked to submit any references. When counsel produced them, she expressed surprise at the reference letters given on her behalf by Mr. Nelson O'Kelly, Mr. Keith Richards and others which she said that she was seeing for the first time.

28 She said that she remained at Harborside until February 2007 when she was offered the position as Technical System Manager at the Cove (the new phase at Atlantis) by the Director of Engineering, Ms. Karen Myers-Rolle.

The Human Resources Manager, Ms. Denise Barnes told her that prior to commencing the new position she was required to do a letter of resignation from Harborside Resort. She did so.

29 The Applicant's letter of offer of employment at the Cove dated February 7, 2007 was done on the stationery of “ATLANTIS Paradise Island, Bahamas”. The letter confirmed the offer to her by the Respondent, Island Hotel Company Limited, of the position of Technical System Manager in its Engineering Division, and informed her that the offer would expire on February 12, 2007.

30 The letter of offer set out in detail the terms and conditions of the Applicant's position as Technical System Manager; and it is notable that the letter expressly established a contractual nexus between the Applicant and the Respondent's affiliated or subsidiary companies:

31 Under the rubric, “ Termination of Employment”, paragraph 16(c) of the letter of offer provided:

“(c) The Company may terminate your employment without notice or payment in lieu of notice in the event of serious misconduct in the course of your duties, including but not limited to…

(ii) Violent acts committed on the Company's premises or the premises or property of any affiliate or subsidiary of the Company…”

32 Again, it was provided in the second sub-paragraph of paragraph 20 as follows:

“You also agree that upon completion of your obligation to us, this requirement of confidentiality shall continue and you will promptly deliver any and all data, manuals, notes, records, and other documents whatsoever held by you as touching the business and affairs of the Company, its affiliates, and/or subsidiaries…”

33 The Applicant accepted the offer by signing the letter on February 7, 2007. Her employee number remained the same as it was during her previous jobs at Atlantis.

34 She said that on June 22, 2007, she was informed by the Human Resources Department that her contract of employment had been terminated. She said that she was devastated. Human Resources personnel further advised that they had a right to terminate her contract of employment.

35 She noted parenthetically that Ms. Myers-Rolle had earlier informed her that she was the only Manager who could give her any “bull shit” and she would not know the difference. Ms. Myers-Rolle added that she could not understand how she could be making $826.00 per week with so little qualifications.

36 The Applicant testified that she tried to appeal her termination, but was told that she was not eligible to do so.

37 She said that on her termination she received a cheque in the amount of $2,555.35 representing one (1) sick day's pay plus “time in lieu” with respect to extra days that she worked. She did not receive notice pay with respect to her entire tenure of employment with the Respondent.

38 Mrs. Gwynneth Rae Stegar-Porter testified that she commenced employment with Harborside Resort some fourteen months ago in the capacity of Manager of Human Resources.

39 She said that she is familiar with the Employee Action Forms.

40 She testified that all new employees at Harborside Resort irrespective of whether they were previously employed elsewhere at Atlantis, are required to go through security checks and other formalities prior to employment. There are no transfers of records from Atlantis' affiliates where new employees of Harborside might have been previously employed.

41 She testified that Harborside Resort is not on the same payroll system as that of Atlantis.

42 She said that management at Harborside Resort has to give its approval for the hire new employees.

43 Employees of the Resort are required to provide savings account information with a view to salary transfers. She cautioned however that she can only speak definitively as to what she knew...