Timothy M. Moore v Bahamas Elec Tricity Corporation

• Jurisdiction: Bahamas
• Judge: Charles, JA
• Judgment Date: 17 December 2024
• Neutral Citation: BS 2024 CA 171
• Docket Number: SCCivApp. No. 111 of 2023
• Court: Court of Appeal (Bahamas)

Between

Timothy M. Moore

Appellant

and

Bahamas Elec Tricity Corporation

Respondent

Before:

The Honourable Mr. Justice Isaacs, P

The Honourable Madam Justice Charles, JA

The Honourable Mr. Justice Turner, JA

SCCivApp. No. 111 of 2023

IN THE COURT OF APPEAL

Civil Appeal — Employment Law — Breach of Contract — Wrongful Dismissal — Unfair Dismissal — Industrial Agreement — Termination Without Notice — Proper Compensation on Assessment — Better Claim for Compensation under the Common Law or Industrial Agreement — Findings of Fact — Pension Not Deductible — Sections 4 and 29 of the Employment Act — Interest — Judicial Deference.

Held: Appeal dismissed. Costs awarded to the respondent, to be taxed by the Registrar if no agreement is reached.

The Court found that the appellant's employment was not a fixed-term contract and was terminable with reasonable notice under common law. The learned judge correctly assessed damages based on the termination date, as she was not bound by the Arbitration Tribunal's decision. The appellant was entitled to a gratuity but not to pension benefits, as he lacked the requisite years of service and had not reached the retirement age. The application of the Calderbank Offer principle was proper, given the appellant's rejection of a reasonable settlement offer. However, the Court found that the learned judge erred in shifting the burden of proving mitigation to the appellant, as this remained the respondent's responsibility. The decision to award simple interest was reasonable in the circumstances of the case.

Abraham v. Performing Rights Society [1995] IRLR. 486 mentioned

Addis v. Gramophone Co. Ltd. [1908-10] All ER Rep 1 considered

Armstead v. Royal & Sun Alliance Insurance Company Ltd [2024] UKSC 6, [2024] 2 WLR 632 mentioned

Bahamasair Holdings Ltd. v. Messier Dowty Inc. [2018] UKPC 25 considered

Bahamas Power and Light Company Limited v. Ervin Dean SCCivApp. No. 115 of 2021 considered

Calderbank v. Calderbank [1975] 3 All ER 333 considered

Central Bank of Ecuador v. Conticorp SA [2015] UKPC 11; [2016] 1 BCLC 26 considered

Cerberus Software Ltd. v. Rowley [1999] IRLR 690 mentioned

Clemenza Ltd & Anor v. The Attorney General of The Bahamas & Anor SCCivApp. No. 28 of 2022 mentioned

Dominica Agricultural and Industrial Development Bank v. Mavis Williams, Civil Appeal No. 20 of 2005 (unreported) considered

Ervin Dean v. Bahamas Power & Light [2024] UKPC 20 considered

Garvey v. Cable Beach Resorts Ltd. [2014] 3 BHS J No. 36 considered

Gregory v. Wallace [1998] IRLR. 387 mentioned

Hayes v. Dodd [1990] 2 All ER 815 considered

Hopkins v. Norcros Plc [1993] 1 All ER 565 considered

Ian Charles v. The Board of Governors of the H. Lavity Stoutt Community College BVIHCV2010/0049considered

Ingraham v. Ruffin's Crystal Palace Hotel Corporation Ltd. BS 2000 SC 18 considered

Leon Cooper v. Grand Bahama Power Company Ltd. SCCivApp No. 178 of 2017 considered

Livingstone v. Rawyards Coal Co. [1880] 5 A.C. 25 mentioned

Smith v. The Gaming Board of The Commonwealth of The Bahamas [2018] 1 BHS J. No. 108 considered

Summit Insurance Limited et al. v. Bolingbroke Limited SCCivApp, No. 145 of 2023 mentioned

Suzanne Fraser v. Betty K. Agencies Ltd. [2014] 2 BHS J No. 51 considered

Wiltshire County Council v. National Association of Teachers in Further and Higher Education and Guy (NATFHE) [1980] I.C.R. 455 mentioned

APPEARANCES:

Appellant appeared Pro Se

Mr. Audley Hanna Jr., with Mr. Keith Major and Ms. Dennise Newton, Counsel for the Respondent

Charles, JA

Judgment delivered by The Honourable Madam Justice

Introduction

1 This appeal emanates from the Ruling of the Honourable Madam Justice G. Diane Stewart (retired), which was delivered orally on 28 April 2023 (the “Assessment”) and thereafter reduced to a written Ruling on 30 June 2023, whereby she ordered Bahamas Electricity Corporation (“the respondent”) to pay damages for the wrongful dismissal of Timothy Moore (“the appellant”) in the following sums:

• (i) Damages for wrongful dismissal in the sum of $72,261.52 inclusive of the sum already paid in the amount of $33,550.00;

• (ii) Gratuity in the sum of $61,732.00;

• (iii)Pre-judgment interest of $60,266.11 and;

• (iv) Interest on the judgment sum at the statutory rate on the judgment sum until payment.

2 Additionally, the learned judge ordered that the appellant's outstanding electricity costs to the respondent to be set off against the damages awarded and the discharge of the injunction which restrained the respondent from disconnecting the appellant's electricity.

3 Dissatisfied with the learned judge's Assessment, the appellant filed a Re-Amended Notice of Appeal on 29 August 2024, challenging certain parts of it. Principally, he seeks a substitution of the award made by the learned judge to an award in the amount of $1,329,550.57 for wrongful dismissal/unjust dismissal and breach of contract, an award of pension arrears in the amount of $1,254,019.49, and a continuing monthly pension benefit in accordance with the Bahamas Electricity Corporation Employees' Pension Plan (the “Pension Plan”).

4 The learned judge heard and considered the evidence, legal principles, and submissions advanced by both parties. She determined, among other things, that (i) the appellant was wrongfully dismissed and was entitled to damages under common law or statute; (ii) the appellant's contract of employment was not a fixed-term contract; (iii) section 29 of the Employment Act (the “Act”) sets out the precise formula by which the requisite notice of termination is to be calculated; and (iv) the appellant is entitled to gratuity benefit and not pension under the Pension Plan.

5 For the reasons set out below, I see no reason to interfere with the learned judge's Assessment. The learned judge's approach in assessing the award of damages for reasonable notice was correct in principle and one that any reasonable judge could properly come to. In the circumstances, I would dismiss the appeal and order the appellant to pay the respondent's costs of the appeal, to be taxed by the Registrar in default of agreement.

Factual and Procedural Background

6 The appellant commenced his employment with the respondent as a training officer on 1 June 1980. He had been employed for more than 23 years before he was dismissed from his employment without cause. At the date of his termination, he held a senior and managerial position. There was no recognized Union or Industrial Agreement at the time of the commencement of the appellant's employment.

7 By an agreement between the respondent and the Bahamas Electricity Corporation Senior Staff Union (the “Union”) dated 17 September 1980, the respondent recognized the Union as the sole bargaining agent for all matters affecting industrial relations on behalf of management personnel. The Union later changed its name to Bahamas Electrical Utility Managerial Union. The respondent and the Union entered into industrial agreements from time to time.

8 The terms of the appellant's employment were governed by a standard industrial agreement between Bahamas Electricity Corporation and Bahamas Electrical Utility Managerial Union (the “Industrial Agreement”), which commenced on 1 October 1998 and ended on 30 September 2003. In accordance with the Industrial Relations Act 1971, the Industrial Agreement was duly registered. Article 11.2 of the Industrial Agreement is pivotal to this appeal. It governs termination of employment and provides as follows:

“ 11.2. Permanent employees may terminate their employment with the Corporation by giving one (1) calendar month's notice in writing to the Corporation. The Corporation may terminate the services of an employee by giving reasonable notice in writing having regard for the following criteria: length of service, age of employee, status, loyalty, education and training, health and chances of alternative employment (sic); except that the Corporation may make payment in lieu of giving notice. However, the Corporation shall not terminate an employee unjustly. The Corporation must settle all entitlements to the employee within two (2) weeks of the effective date of termination as determined by the Corporation.” [Emphasis added]

9 Leaving aside the underlined words, Article 11.2 is straightforward. Permanent employees may terminate their employment with the respondent by giving one calendar month's notice, and the respondent may terminate the services of an employee by giving reasonable notice in writing, having regard to the specified criteria. The notice period may be substituted with a payment in lieu of notice. Any payment in lieu of notice (and all other entitlements) must be settled within two weeks of the effective termination date (as determined by the respondent).

10 By letter dated 18 July 2003, the appellant was issued a first termination letter, which informed him of his termination with the respondent, with immediate effect. The appellant then filed a trade dispute pursuant to the terms of the Industrial Agreement, alleging that he was not properly informed of the accusations, was not given a verbal or written warning, and was not given an opportunity to respond to the accusations. The respondent then withdrew the first termination letter.

11 The appellant's employment was again terminated by the respondent by letter dated 5 March 2004. Evans J (as he then was) determined that the effective termination date was 18 July 2003.

12 As a result of the appellant's termination, he commenced this action against the respondent by a Specially Indorsed Writ of Summons filed on 4 August 2004 (the “2004 Action”), wherein he sought damages of $1,248,280.00 for wrongful dismissal and other alleged breaches, including repudiatory breach of an implied term of the Employment Agreement and the Industrial Agreement.

13 On 31 May 2011, the appellant...