Russell v Gaming Board for The Commonwealth of The Bahamas
| Jurisdiction | Bahamas |
| Judge | Evans, J. |
| Judgment Date | 23 January 2015 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2013/CLE/GEN/FP0005 |
| Date | 23 January 2015 |
Supreme Court
Gray-Evans, J.
2013/CLE/GEN/FP0005
Mr. Harvey O. Tynes, Q.C., Miss Ntshonda Tynes and Miss Roseann Sweeting for the plaintiff
Miss Monica Stuart for the defendant
Employment Law - Claim for sums owed for gratuity — Contract of employment — Terms — Breach of agreements for further employment — Whether notice given of change in employment status — Wording of condition required terms of new contract to be mutually agreed — Finding that plaintiff failed to prove that there was an agreement for the defendant to pay a gratuity — Claim dismissed.
The plaintiff's claim arises out of an employment contract.
This action was commenced on 14 May 2013 by a specially indorsed writ of summons in which the plaintiff claims from the defendant damages in the sum of $15,855.00, together with interest and costs, made up as follows:
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a. Gratuity due October 2009 15% of $34,700.00 $5,205.00
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b. Gratuity due October 2010 15% of $35,500.00 $5,325.00
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c. Gratuity due October 2011 15% of $35,500.00 $5,325.00
The defendant denies the plaintiff's claim.
The plaintiff passed away on 19 April 2014 and, by consent, the plaintiff's widow, Sandra Russell, was ordered to continue the action in his place and on behalf of his estate.
Evidence at the trial was given by Mrs. Russell on behalf of the plaintiff and by Ms. Tanya Stubbs on behalf of the defendant. The witnesses provided witness statements as their evidence-in-chief and each of them was cross-examined.
For the most part, the facts are not in dispute.
Bruce Russell, the plaintiff, was employed by the defendant as an Inspector I for a three-year term from 1st October, 2005 to 30th September, 2008 pursuant to an agreement in writing dated 1st October, 2005 (“the 2005 agreement”). During the term of the 2005 agreement, the plaintiff earned a fixed basic salary of $34,700.00 per annum.
The 2005 agreement expressly stated that it was subject to the conditions set forth in a “Memorandum of Conditions of Service on Contract in The Bahamas” annexed thereto, which Memorandum was to be read and construed as part of the 2005 agreement. The Memorandum contained, inter alia, the following conditions at paragraphs 3, 10 and 13 thereof:
“3. Gratuity: On the satisfactory completion of each year of the contract a gratuity at the rate of 15% of the basic salary will be payable.”
“10. The Board may at any time terminate the services of an officer on giving him three months' notice in writing or on paying him three (3) months' salary.
The officer may at any time terminate his engagement on giving to the Board three months' notice in writing or on paying to the Board three (3) months' salary in lieu of such notice.
If the officer terminates his engagement otherwise than in accordance with the Agreement, he shall be liable to pay the Board as liquidated damages three (3) months' salary.”
“13. Further Employment: Six months prior to the completion of the term of this Agreement the person engaged should give notice in writing to the Board whether he desires to remain in its employment and the Board shall within one month of the receipt of such notice decide whether it will offer him further employment. If the Board offers him further employment, the re-engagement will be on such terms and for such period as may be mutually agreed.”
The Memorandum also contained, inter alia, conditions as to insurance, leave, travel expenses, and transportation and telephone allowances.
Prior to, or shortly after, the completion of each year of the aforesaid three-year term, that is, on 12th September, 2006, 27th September, 2007, and 6th October, 2008, the defendant paid to the plaintiff a gratuity of 15% of his basic salary pursuant to condition 3 aforesaid.
By memorandum dated 3 July 2008, the defendant's Manager of Administration and Personnel wrote to the plaintiff reminding him of the requirement under condition 13 aforesaid for the plaintiff to give written notice whether he wished to remain in the defendant's employ. The plaintiff responded by letter dated 4th July, 2008 asking that his contract of employment be renewed for a further three-year period.
In a letter dated 27th August, 2008, the defendant's then secretary, Mr. Bernard Bonamy, advised the plaintiff that the defendant had agreed that the plaintiff “would remain in its employ” and that his “status would be changed from contractual to a year-to-year basis, effective 1st October, 2008.”
On 26th September, 2008, Mr. Bonamy wrote as a follow-up to the 27th August, 2008 letter and advised the plaintiff that he would “continue to receive the usual annual increments based on favourable assessments by [his] supervisors and that [he] would be eligible to receive any other increases to which the Bargaining Unit would be entitled.”
The plaintiff began serving the defendant pursuant to the first year-to-year agreement on 1st October, 2008 as Inspector I at an annual salary of $34,700.00.
On 18th August, 2009, Mr. Bonamy, wrote to the plaintiff referring to the 27th August, 2008 letter, and asked whether the plaintiff wished to remain in the defendant's employ. The plaintiff responded in the affirmative and by letter dated 30th September, 2009, Mr. Bonamy advised the plaintiff of the defendant's decision to keep him in its employ for an additional year “effective 1st October, 2009 to 30th September, 2010.” The plaintiff accepted the defendant's offer and on 1st October, 2009 began his second year-to-year employment with the defendant as Inspector I, at an annual salary of $34,700.00.
By letter dated 19th April, 2010, the defendant's then Secretary, Mr. Dennis Martin, wrote to the plaintiff indicating that as his “current year-to-year status” would expire on 30th September, 2010, the defendant required his confirmation whether or not he wished to remain in the defendant's employ. The plaintiff responded by letter dated 3rd May, 2010 in which he confirmed his “desire and need” to continue his employment with the defendant and by letter dated 29th July, 2010, Mr. Martin advised the plaintiff of the defendant's decision to keep the plaintiff in its employ “for a final year, effective 1st October, 2010 until 30th September, 2011.”
Prior to the commencement of the third and final year-to-year agreement, the defendant by letter dated 23rd April, 2010 notified the plaintiff that he had been granted “a performance-based increase of $800.00 per annum, having attained a final score of 3.0 on [his] performance appraisal for the period January — December 2009.” The plaintiff's salary was thereby increased from $34,700.00 to $35,500.00 per annum with effect from 1st January, 2010.
The plaintiff began serving the defendant as Inspector I, at an annual salary of $35,500.00, pursuant to the third year-to-year agreement on 1st October, 2010 and he served the defendant until 30th September, 2011.
The defendant did not pay the plaintiff any gratuity for the years ending 30th September, 2009, 30th September, 2010, and 30th September, 2011.
On 26th September, 2011, shortly before the end of his third and final year-to-year agreement, the plaintiff wrote to the defendant as follows:
“Mr. Dennis Martin
Secretary
Gaming Board for the
Commonwealth of The Bahamas
Re: Gratuity Payment — Contract Employees
Dear Mr. Martin
I refer to my recent retirement from the Gaming Board for the Commonwealth of The Bahamas and subsequent non-payment of gratuity for the respective years 2009, 2010 and 2011. It is my belief that these gratuities are outstanding based on the contractual agreement dated October 3, 2005, outlining the terms and conditions for employment and subsequent extensions granted.
It is my understanding that I could not be regularized due to my age at the time of hire, and was hence granted a contract of employment which contained a clause that stated on the satisfactory completion of each year of the contract a gratuity at the rate of 15% of the basic salary will be paid. Therefore, since I was granted extension for which I was very grateful and since I could not be regularized, it would be fair to assume that the original terms of the agreement would apply, as the correspondence confirming the year to year contract did not state otherwise. Furthermore, I was verbally told that I would not receive the gratuities any longer nor would I be entitled to casual days during the extended employment period.
I would be very grateful for a review of the decision not to pay the gratuities for the extended contractual years, as is the custom when granting extensions, particularly where the terms of employment have not been explicitly altered.
With all due respect, a mutual resolve of this matter would be greatly appreciated.
Sincerely
Bruce U. Russell, Sr
Inspector I
There is no evidence of the defendant responding to that letter in writing.
The plaintiff now alleges that in breach of the agreements for further employment, the defendant failed to pay him gratuity as aforesaid.
The defendant contends that payment of a gratuity was not a term of its new agreement with the plaintiff for his re-engagement commencing 1st October, 2008, which agreement, the defendant says, is contained in the letters dated 27th August, 2008 (letter one) and 26th September, 2008 (letter two).
In that regard, the defendant alleges/avers at paragraph 4 of its defence as follows:
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a. Letter one: The Board agreed that the plaintiff would remain in its employ with employment status being changed from contractual to a year-to-year basis.
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b. Letter two: The plaintiff was advised that he would receive the annual increments based on favourable assessments and any other increases to which the Bargaining Unit would be entitled.
The...
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