Tiffany Garvey v Global United Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 02 March 2012
• Docket Number: IT/NES/1262/08

In the matter of the Industrial Relations Act 321

And

In the matter of the Employment Act, 2001

Tiffany Garvey

Applicant

and

Global United Limited

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1262/08

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mrs. Mavis Collie, Counsel for the Applicant

No appearance by or on behalf of the Respondent

DECISION

1 This matter came on for hearing on the 16 ^th and 17 ^th December, 2010. On the 16 ^th only the Applicant and her attorney appeared with no appearance by the Respondent. The Tribunal, being satisfied that the Respondent was properly served proceeded to hear the matter pursuant to section 59 (1) of the Industrial Relations Act Chapter 321.

EVIDENCE OF THE APPLICANT:

2 The evidence of the Applicant is that in October 2002 she commenced employment with Global United (GU) in Freeport, Grand Bahama. Initially she was employed as the Executive Secretary to the President and C.E.O. Mr. Jackson Ritchie. She worked in this capacity up to December, 2004 when she was offered a position in the company in Nassau. The company had expanded and the main operation moved to Nassau. The Applicant remained the Assistant to the C.E.O. in Nassau.

3 In December of 2007, the Applicant was transferred back to Freeport. Once back in Freeport the Applicant worked in various areas of the business. In January of 2008, the Applicant was notified by management that she had been promoted to the post of Human Relations and Administrative Manager effective March, 2008.

4 On the evening of April 13, 2008, the Applicant's husband who was at the marital home in Nassau was paid a visit by the wife of the C.E.O. and a friend of the C.E.O. The C.E.O.'s wife told the Applicant's husband that she had a few issues with the Applicant and that the Applicant was going to be fired the next day. The Applicant's husband then informed the Applicant of the visit he had and what was said to him.

5 The Applicant showed up for work the following day as usual only to be approached by a member of staff who was not a part of management and told her that she was to turn in her keys. The keys were handed over to the co-worker as she had asked and a few hours later an e-mail was circulated within the company to everyone advising that the Applicant was no longer employed with G.U. A copy of the e-mail is set out in full below and was entered into evidence as Exhibit T.G. 5.

“From: Vonetta Spence

Sent: Monday, April 14, 2008 10:21 AM

To: Global United Nassau Everyone: Global United Freeport; Travel Network; opsmie

Subject: Tiffany Garvey

Please be advised that Tiffany Garvey is no longer employed with Global United Ltd.”

6 According to the Applicant, this was how she learned that she was terminated. The Applicant's further evidence is that prior to the termination she had been granted a loan by the company and counsel for the Applicant provided a copy of the schedule for the loan. The loan however was paid in full, prior to the Applicant's termination. The co-worker who was referred to by the Applicant earlier was a lady by the name of Betty Smith of the Freeport Office whose position was that of Receptionist. It is coincidental that the letter of promotion was signed by one Vonetta Spence of the Nassau Office.

7 The Applicant says that once she saw the e-mail it was sufficient for her to realize that she was terminated. This was so she says because of Ms. Spence's position with the company. There was no direct communication with the Applicant and no one called her to say anything.

8 At the time of the Applicant's termination her salary was $24,000.00 per annum. It is the Applicant's evidence that she had vacation outstanding which she recalls being two weeks. The company provided medical insurance with Colina Insurance. The Applicant also had dependent coverage. It is the evidence of the Applicant that the company also paid fifty per cent (50%) of the cost for the children. There was also a pension plan for which monies were being deducted from the Applicant's salary. However, the Applicant's evidence is that the funds were never paid over to CLICO for the last three months. The amount being deducted was $75.00.

9 The Applicant recalls receiving a letter of appointment. She also received several job letters for banking purposes. Counsel for the Applicant produced two letters dated March 11 ^th, 2008 and April 04 ^th, 2007 which were provided to the Applicant to facilitate obtaining loans from various banks. These letters were entered into evidence as Exhibits “T.G. 1 and “T.G. 2”. Counsel then produced an e-mail announcing the promotion of the Applicant. This e-mail was entered into evidence as Exhibit ‘T.G. 3”. As it relates to the Applicant's salary, counsel for the Applicant produced a salary slip for the period of March 26 ^th, 2008. The salary slip which is set out in full below shows the deductions made from the Applicant's salary inclusive of the medical insurance, life insurance and National Insurance. The salary slip also shows a “0” in the salary advance column. The salary slip was entered into evidence as Exhibit T.G. 4.” The e-mail announcing the termination of the Applicant was entered into evidence as Exhibit “T.G. 5.”

GARVEY, TIFFANY”

Global United Limited — Admin —	GARVEY, TIFFANY Pay Statement — Wednesday, March 26, 2008
Employee GATI	Hrs.	Dollar	YTD.	Deduction	Employee	Employer	YTD Empl'e	YTD Empl'r
Regular	173.33	3,500.00	9,566.68	National Insurance	58.92	93.58	176.761	280.74
Other Reg.	0.00	0,00	0.00	Vac. Deduction	0.00	0.00	0.00	0.00
Time/Half	0.00	0.00	0.00	Salary Advance	0.00	0.00	0.00	0.00
Double	0.00	0.00	0.00	CELL PHONES	0.00	0.00	0.00	0.00
Sick Pay	0.00	0.00	0.00	Salary Advance	0.00	0.00	0.00	0.00
Vacation Allowances	0.00	0.00	0.00	Medical Insurance	253.63	253.63	760.89	760.89
Bonus	0.00	0.00	0.00	Vac paid in adv.	0.00	0.00	0.00	0.00
Medical Ins. ADJ.	0.00	0.00	0.00	CLICO	75.00	0.00	225.00	0.00
				Furniture Plus	136.36	0.00	409.08	0.00
				Loans	Payment	Principle	Interest	Balance
Rate/Hr.	20,1927	Gross Pay	3,500.00	9,566.68
Nat. Ins. #	30676754	Deductions	821.31	2,138.53
		Net pay	2,678.69	7,428.15

BANK SCOTIA BANK BRANCH CABLE BEACH ACCOUNT 1005426 TYPE AMOUNT 2,678.69

10 As it relates to mitigation of damages, the Applicant's evidence is that she was terminated on April 14 ^th, 2008 and she found employment in October of the same year. The Applicant says that she actively sought employment. Currently she earns an annual salary of approximately $15,000.00. It could be more but she is certain that it is less than $20,000.00. The Applicant has lost all of her insurances.

11 It was at this stage that counsel for the Applicant made an application to have Jackson Ritchie joined in the matter and gave an undertaking to provide the Tribunal with the Form M pursuant to Section 16 (1) of the Industrial Relations (Tribunal Procedure) Rules, 2010. The basis for the Application as stated by counsel for the Applicant was that the Originating Application Form at item 4 contains the name of Jackson Ritchie. The Originating Application Form is set out in full below:-

12 Section 16 (1) of the Industrial Relations (Tribunal Procedure) Rules 2010 states:-

“The Tribunal may at any time on the application of any person made by Notice to the Secretary in Form M in the Schedule or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.”

13 In the case of NATFITE ORS V HALKIOPOULOS BAIL II case number [2002] UKEAT 130 — 02 — 0402 Mr. Justice Lindsay said at paragraph 15;

“But the addition of fresh parties, especially after some interval has elapsed and between the lodging of the first IT 1 and the seeking to add, is necessarily, as it seems to us, a matter of discretion, a discretion to be exercised by the Employment Tribunal. Relevant factors to be taken into account in the course of the exercise of that discretion must include (and this is not be thought to be an exhaustive list) the effect on the existing proceedings and the effect on the existing parties of adding the proposed new parties. Does it, for example, add to costs? Is it likely to jeopardize dates that have already been fixed? Ought there not to be some indication of the reason why they were not added earlier, questions such as why were they not added at first and why has there been delay thereafter? What is gained by the addition? If some particular event has triggered the reason for the joinder, has there been delay since that event occurred and what is the attitude of the existing parties to the proposed joinder?”

14 Further, in the case of ALSTOM TRANSPORT v TILSON [2007] UKEAT 0532-07-0412 (4 December, 2007) Mr. Justice Elias stated; as it relates to 10 (2), (k) of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunals (Constitution and Rules Procedure Regulations 2004);

“The tribunal may order that any person who the chairman or tribunal considers may be liable for the remedy claimed should be made a Respondent in the proceedings. The power to add a respondent has always been available as part of the tribunal's general powers to regulate their own procedure.”

(See COCKING V SANDHURST (STATIONERS) LTD [1974] ICR 650.

15 This particular discretion is to be found in section 66 of the Industrial Relations Act chapter 321 which states;

“Subject to the provisions of this Act, the Tribunal may by rules REGULATE (our emphasis) its own practice and procedure for the hearing and determination of...