Souffrant v Storm Frame Windows
| Jurisdiction | Bahamas |
| Court | Industrial Court (Bahamas) |
| Judge | Thompson, V.P. |
| Judgment Date | 22 May 2015 |
| Date | 22 May 2015 |
| Docket Number | IT/NES/1510/10 |
Industrial Tribunal
Thompson, V.P.
IT/NES/1510/10
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.
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;”
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.
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)
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.
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.
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.
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;
- Adam Dann 2. Ian Bellas 3. John Miguel Perez 4. 1756578 Ontario Inc. 5. Kymglen Holdings Co. Ltd. 6. Ron Bethel
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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