Paul F. Major v First Caribbean International Bank (Bahamas) Ltd

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 07 April 2022
• Neutral Citation: BS 2022 CA 054
• Docket Number: SCCivApp. No. 77 of 2021
• Originating Jurisdiction: http://justis.com/jurisdiction/187

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCivApp. No. 77 of 2021

B E T W E E N

Paul F. Major

Appellant

and

First Caribbean International Bank (Bahamas) Limited

Respondent

APPEARANCES:

Ms. Krystal Rolle, QC with Ms. Kendrea Demeritte for the Appellant

Mr. Ferron Bethell, QC with Mrs. Viola Major for the Respondent

A v. B, [2003] IRLR 405 EAT; considered

Bahamas Electricity Corporation & Bahamas Power & Light v. Sherry Jennifer Brown, IndTribApp. No. 71 of 2020; mentioned

Bahamasair Holdings Ltd v. Messier Dowty Inc, [2018] UKPC 25; applied

Bahamasair Holdings Limited v. Omar Ferguson, SCCivApp. No. 16 of 2016; considered

B.M.P. Limited d/b/a Crystal Palace Casino v. Ferguson, [2013] 1 BHS J. No. 135; mentioned British Home Stores Ltd v. Burchell, [1978] IRLR 379 EAT; mentioned Cartwright v. US Airways, [2016] 1 BHS J. No. 96; considered

Central Bank of Ecuador v. Conticorp, [2015] UKPC 11; applied

Earl v. Slater & Wheeler (Airlyne) Ltd, [1973] 1 All ER 145; considered

Eden Butler v. Island Hotel Company Limited (Trading as Atlantis Paradise Island, SCCivApp No. 210 of 2017; considered

Eloise Shantel Curtis-Rolle v. Doctor's Hospital (Bahamas) Limited, SCCivApp No. 149 of 2012; mentioned

Ferguson v. Bahamas Air Holdings Ltd [2015] 3 BHS J. No, 37; considered

Ferguson v. Island Hotel Company Limited, [2018] 1 BHS J. No. 148; considered ILEA & Gravette, [1988] IRLR 497; considered

Island Hotel Company Ltd. v. Shakera Isaacs — Sawyer, IndTribApp No. 88 of 2018; mentioned

Helena McCardy v. John Bull, IndTribApp. No. 20 of 2019; considered

Kenyon Road Haulage Ltd v. Kingston, [2016] EWCA Civ 967; considered

Laws v. London Chronicle (Indication Newspapers) [1959] 1 W.L.R. 698 mentioned

Polkey v. A.E. Dayton Services Ltd, [1987] 3 All ER 974; considered

Salford Royal NHS Foundation Trust v. Roldan, [2010] IRLR 721; considered

Thurston and another v. John Bull Limited, [2002] BHS J No. 131; mentioned

Todd and others v. Adam and another, [2002] All ER (D) 121; considered

West v. Percy Community Centre UKEAT/0101/15/RN; considered

Civil Appeal — Unfair Dismissal — Wrongful Dismissal — Breach of Contract — Summary Dismissal — Employer's duty to prove his honest and reasonable belief that employee had committed the misconduct in question at the time of the dismissal — Employer's further duty to prove that he has conducted a reasonable investigation of such misconduct — Code of Conduct — Code of Discipline — Employee's duty to cooperate with employer's internal investigation - Fairness Principle — Substantial merits of the case — Breach of implied term of trust and confidence — Sections 33, 34 and 35 of the Employment Act, Ch. 321A

On 26 April 2021 the Appellant's claims for unfair dismissal, wrongful dismissal, breach of contract and defamation were dismissed in the Supreme Court with costs certified fit for two counsel.

The Appellant filed a Notice of Appeal on 7 June 2021 raising 28 grounds of appeal. Many of the grounds overlapped, but they all collectively attacked the rejection and dismissal of his claims.

The Respondent bank filed a Respondent's Notice on 18 June 2021 specifying numerous grounds to support its contention that the judge's decision should be upheld on grounds other than those relied upon by the judge.

After hearing the contending arguments, the Court reserved its decision.

Held : Appeal dismissed. The learned judge's decision in the court below is affirmed in its entirety. The usual order is that costs follow the event. Accordingly, the Appellant shall pay the Respondent's costs of the appeal, certified fit for two (2) counsel, to be taxed if not agreed.

In The Bahamas, wrongful dismissal claims are still largely governed by common law principles save that the standards governing summary dismissal of an employee for misconduct which constitutes a fundamental breach of a contract of employment, or which may be repugnant to the fundamental interests of the employer have been embodied in statute. These are set out in Part VIII of the Bahamas Employment Act (sections 31, 32 and 33) under the broad heading “SUMMARY DISMISSAL”.

Given the state of the pleadings, this was a case where the provisions of sections 33 and 35 of the BEA were both engaged. In considering FCIB's Defence and the Appellant's claim, the learned judge had necessarily to consider: (a) the requirements of section 33 to determine whether FCIB had met the statutory standards for summary dismissal; alongside (b) the Appellant's claim under section 35 that he was unfairly dismissed. As will later appear in our judgment, the authorities clearly show that each case is to be considered in the round with the court or tribunal undertaking the necessary inquiry in line with the applicable statutory provisions. In England, the inquiry is undertaken within section 98 of Part X (Unfair dismissal) of the Employments Rights Act, 1996, whereas in The Bahamas, the inquiry is regulated by the provisions of Parts VIII (Summary Dismissal) and/or IX (Unfair Dismissal) of the BEA depending on the pleadings and the specific type of dismissal which is under consideration.

Unlike section 98 of the English Employments Right Act, 1996, in The Bahamas, the “fairness principle” in section 35 of the Bahamas Employment Act contains no reference to “equity”. Furthermore, nothing in sections 33 or 35 expressly requires a court or tribunal to have regard to natural justice or the Audi Alteram Partem rule when determining whether an investigation is reasonable or unreasonable; or when considering whether a dismissal is fair or unfair. Whether a dismissal is fair or unfair will always depend on “the substantial merits of the case” which will include an evaluation of the circumstances of the dismissal and its reasonableness (or otherwise) and an overall assessment of the fairness or unfairness of the dismissal, based on the factual inquiry which must necessarily be undertaken in each individual case.

The authorities are replete with examples which demonstrate that the circumstances of each dismissal must be looked at in the round and that it is not every procedural defect or failure which will result in an investigation being held to be unreasonable and a dismissal unfair.

The learned judge's finding that FCIB had met the standards in section 33 to summarily dismiss the Appellant; and his ultimate finding that the dismissal was not unfair were both logical and reasonable. The written judgment demonstrates that the judge adverted to the relevant law and supported his findings and conclusions by reference to the evidence led and the facts he accepted. He had the distinct advantage of having had the evidence tested under cross-examination before him and to determine the credibility of the witnesses. We are unable to say that he misapplied the law or arrived at conclusions which were demonstrably wrong.

Clause 2 of the Code of Discipline expressly declares that the procedure “does not form part of the contract of employment with CIBC First Caribbean and is subject to change from time to time at the discretion of the bank.” In the light of the express stipulation contained in Clause 2 of the Code of Discipline that the procedure does not form part of the contract of employment with the bank, we are satisfied that the learned judge's decision at paragraph [151] was plainly correct. Although the judge did not advert to Clause 2 and gave a different reason for dismissing the appellant's breach of contract claim, the Appellant's claim based on FCIB's failure to adhere with the disciplinary procedures set out at Clause 4.5.5 of the Code cannot not possibly succeed.

As the primary finder of fact, the learned judge was entitled to make the findings of fact which he did in relation to the disputed issue as to when the US Persons Policy was in place within the bank. He examined the evidence, including the documents and the sworn testimony of the witnesses together with the Appellant's claim that the policy had not been in place until 2014. There is no basis on which we can properly interfere with the judge's primary findings of fact on that issue. These grounds have no merit and are dismissed.

Decision delivered by The Hon. Madam Justice Crane-Scott, JA

Introduction

1 . This is an appeal against a written judgment of the Hon. Mr. Justice Keith Thompson (retired) handed down on 26 April 2021 in the Supreme Court in which the learned judge dismissed the Appellant's claims for unfair dismissal, wrongful dismissal, breach of contract and defamation; and awarded costs to the Respondent (FCIB) certified fit for two counsel to be taxed if not agreed.

2 . As appears from his 17-page Notice of Appeal Motion, the Appellant filed 28 grounds of appeal collectively attacking the rejection and dismissal of his claims for unfair dismissal, wrongful dismissal and breach of contract, respectively. He further seeks an order from this Court which would set aside the judge's decision in its entirety including the findings that he had not been unfairly or wrongfully dismissed and/or that there had been no breach of contract. He asks this Court to make the following consequential orders, namely: (i) that he was unfairly dismissed; and/or (ii) wrongfully dismissed; and (iii) that his contract of employment had been breached and seeks a further order assessing his loss and damage for unfair dismissal, wrongful dismissal and/or breach of contract, together with an order that he be awarded costs of the appeal and in the court below.

3 . FCIB filed a Respondent's Notice on 18 June 2021 specifying numerous grounds in support of its contention that the judge's decision should be upheld on grounds other than those relied upon by the court below.

4 . We have dismissed the appeal. Our reasons appear...