Souffrant v Storm Frame Windows

JurisdictionBahamas
CourtIndustrial Court
JudgeThompson, V.P.
Judgment Date22 May 2015
Docket NumberIT/NES/1510/10

Industrial Tribunal

Thompson, V.P.

IT/NES/1510/10

Souffrant
and
Storm Frame Windows
Appearances:

Mr. Errol McKinney Labour Advocate for the applicant.

No appearance by or on behalf of the respondent.

Employment Law - Industrial dispute — Termination of employment — Dismissal — Contract of employment — Variation — Repudiation — Whether there was a unilateral variation of fundamental contract term — Whether applicant entitled to damages — Damages awarded.

Thompson, V.P.
1

This matter commenced in the absence of the respondent who was properly served on January 8th, 2015. The hearing was scheduled for February 18th and 19th, 2015. The court being satisfied that the respondent was properly served proceeded in the absence of the respondent pursuant to Section 59(1),(a) which reads as follows;

Section 59(1),(a)

  • “(1) In addition to the powers conferred on it under the foregoing provisions of this Act the Tribunal may –

    • (a) proceed to hear and determine any question arising in connection with a dispute in the absence of any party who has been duly summoned to appear before the Tribunal and has failed to do so;”

EVIDENCE OF THE APPLICANT:
2

The evidence of the applicant is that in or about June 2005 he commenced employment with the respondent as a labourer. He received a promotion in or about 2008 to the position of Supervisor, supervising at least three (3) persons on special projects. When he joined the company his salary was $500.00 per week or $12.50 per hour for 40 hours per week. There was no increase in salary. The applicant explained what brought about his termination. The company issued a new contract which they wanted the employees to execute agreeing to a salary cut. The applicant didn't execute the agreement. The company wanted to reduce the applicants' salary from $500.00 to $375.00 per week.

3

There were two exhibits produced, Exhibit “P.S.1” and “P.S.2” both of which are set out below:–

Exhibit “P.S. 1”

Storm Fiume Windows 2

Shirley Street

P.O. Box N–1836

Suite A–213

Nassau, Bahamas

Patrick Souffrant

Employee Paystub

Check Number

Pay Period: 01/16/2008–01/22/2008

Pay Date: 01/22/2008

Employee — Patrick Souffrant

SSN

Status (Fed/State) — Single

Allowances — Fed–0/0

Earnings and Hours — Hourly

Qty — 40.00

Rate — 12.50

Current — 500

YTD Amount — 1,493.75

Adjustments to Net Pay

Current

N.I deduction —13.60

Salary deduct–Commonwealth Ban —100.00

Subtotal —113.60

Net pay — 386.40

YTD Amount

N.I deduction —40.80

Salary deduct–Commonwealth Ban — –300.00

Subtotal —340.80

Net pay — 1152.95

Storm Frame Windows 2, Shirley Streak P.O. Box N- 11338, Suite A-213, Nassau, Bahamas 242–394–1916

Exhibit “P.S. 2”

Storm Frame Windows (II) Ltd.

WGL

Shirley Street

PO Box N—1836

Suite# A—213

Nassau, Bahamas

Patrick Souffrant

Employee Paystub

Check Number: 452

Pay Period: 12/03/200–12/09/2009

Pay Date: 12/11/2009

Employee — Patrick Souffrant

SSN⋆⋆⋆–⋆⋆–2826

Status (Fed/State) — Single

Allowances — Fed—0/0

Earnings and Hours — Hourly

Qty — 40.00

Rate — 9.70

Current — 388.00

YTD Amount — 10,3043.06

Earnings and Hours — Overtime (1.5) hourly

Qty — 0.49

Rate — 14055

Current — 11.88

YTD Amount — 113.73

Earnings and Hours — Hourly sick

Qty –

Rate –

Current –

YTD Amount — 155.20

Earnings and Hours — Hourly Vacation

Qty –

Rate –

Current –

YTD Amount — 310.40

Total Current — 399.88

Total YTD Amount — 10,883.39

Taxes

Current

Federal Withholding — 0.00

Social Security Employee — 0.00

Medicare Employee — 0.00

Total — 0.00

Paid Time Off — Sick

YTD Used — 16:00

Available — 24:00

Paid Time Off — Vacation

YTD Used — 40:00

Available — 40:00

Non-Taxable Company Items

NIS Employer Contribution

Current — 20.25

YTD Amount 561.54

Taxes

YTD Amount

Federal Withholding — 0.00

Social Security Employee — 0.00

Medicare Employee — 0.00

Total — 0.00

Adjustment to Net Pay

Current

NIS Employee — –13.00

Net Pay — 386088

Adjustment to Net Pay

YTD Amount

NIS Employee —345.77

Net Pay — 10,528.62

Storm Frame Windows (II) Ltd., BWGL, Shirley Street, PO Box N–1836 Suite⋆A–213, Nassau, Bahamas 242–394–1916, Storm Frame Windows Ltd. (BWGL)

4

Exhibit “P.S. 1” shows the applicant's pay slip evidencing the payment of $500.00 per week and Exhibit “P.S. 2” shows the applicant's reduced salary at $375.00 per week. We point out here to the applicant's earlier evidence that he never agreed nor did he sign for the reduction in salary.

5

The applicant was terminated in or about December, 2009. It is interesting that in the respondents' filed Defence at paragraphs (c) and (e) the respondent answers “YES” to the dates given as to his period of employment and “YES” to the applicant's details of remuneration which the applicant stated as being $500.00. However, we also have the evidence at Exhibit “P.S. 2” where the respondent unilaterally reduced the applicant's salary from $500.00 to $375.00.

6

According to the applicant, Mr. Ian Bellas told him and the three individuals he supervised that there was nothing for them to do. A week later they went back to check but met two employees from Storm Frame No. 1 doing the very same work that he and his subordinates were doing previously. This he says went on for several months. He knows this because he kept going back to check. He was always told the same thing that there was nothing to do. He would on every occasion meet the same fellows doing the work and loading up the truck.

7

Mr. Bellas never said to him that he was terminated. However, he says he realized that he wasn't wanted so he went and filed a trade dispute. It took the applicant about six (6) to seven (7) months to find new employment. He presently earns $300.00 per week and is paid every two weeks. At this point, the applicant's representative made an application to join the principals of the company who he identified as;

1
    Adam Dann 2. Ian Bellas 3. John Miguel Perez 4. 1756578 Ontario Inc. 5. Kymglen Holdings Co. Ltd. 6. Ron Bethel
8

Pursuant firstly to Section 65(2) of the Industrial Relations Act, Chapter 321 which reads;

Section 65(2)

“The Tribunal may, during the course of any dispute pending before it direct that any agents...

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