Vernell Nottage v The Bahamas Technical and Vocational Institute
| Jurisdiction | Bahamas |
| Court | Court of Appeal (Bahamas) |
| Judge | Sir. Michael Barnett, JA (Actg.) |
| Judgment Date | 06 March 2018 |
| Neutral Citation | BS 2018 CA 29 |
| Docket Number | SCCivApp No. 22 of 2016 |
| Date | 06 March 2018 |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Hon. Mr. Justice Sir Hartman Longley, P
The Hon. Mr. Justice Jon Isaacs, JA
The Hon. Mr. Justice Sir Michael Barnett, JA (Actg.)
SCCivApp No. 22 of 2016
Mr. Kahlil Parker with Ms. Roberta Quant, Counsel for the Appellant
Ms. Hyacinth Smith, Counsel for the Respondent
Beacon Insurance Company Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 mentioned
Messier-Dowty Inc v Bahamasair Holding Ltd SCCiv App No. 307 of 2014 mentioned
Beulah Rahming v The Mailboat Company Ltd SCCiv App No. 54 of 2015 mentioned
Civil Appeal — Contract — Fixed Term — Renewal — Employment — Suspension — Legitimate Expectation — Private Law
The Appellant was a Senior Trained teacher at the Respondent, an institution of tertiary education. By letter dated 14th June, 2012 the Appellant was suspended with pay for alleged insubordination. She remained on suspension and was paid up to the end of August, 2012. The issues surrounding the suspension were not resolved but the respondent discontinued paying the appellant at the end of August, 2012. In October of 2012 the appellant was informed by the respondent that the Institution would not be re-engaging her services. The Appellant then issued subsequently issued a Writ.
appeal dismissed, costs of the appeal are the respondent's to be taxed if not agreed
per Barnett, JA (Actg.)
The Appellant was employed on a fixed term contract. It was not a contract of indefinite duration. The Appellant was only being employed for a limited time and I am satisfied that the Appellant's employment with BTVI would have come to an end at the expiration of the 2011/2012 academic year.
In my view the trial judge ought to have found that Ms. Nottage's contract for the 2011/2011 school year expired at the end of July, 2012. I do not agree that the letters of the 1st August, 2012 and the payment of salary for the month of August, 2012 are inconsistent with the position that there was no contract of employment after the expiration of the academic year 2011/2012.
The letters of 1st August, 2012 and the payment of the salary for the month of August, should not be construed as evidence that the contract of employment was renewed. That would be inconsistent with the fact that the Appellant was not paid in the month of September and was not scheduled to teach any classes for the 2012/2013 academic year.
If an employee is suspended with pay during the period of his fixed term contract, that suspension cannot have the effect of extending the term of the fixed term contract. The employer is not obliged to continue the contract after the end of the fixed term. At the end of the fixed term the contract of employment comes to an end and with it the suspension.
I am not satisfied that on the present state of the law the doctrine of legitimate expectation applies to private contract law.
Decision delivered by The Honourable Sir. Michael Barnett, JA (Actg.)
This is an appeal from a judgment by Mr. Justice Evans delivered on the 27th January, 2016 whereby he dismissed an action brought by the Appellant, Vernell Nottage (“the Appellant/Ms. Nottage”) against the Respondent, Bahamas Technical & Vocational Institute (“the Respondent/BTVI”) for certain declaratory relief arising out of a contract of employment between Ms. Nottage and BTVI as well as damages for breach of contract.
This appeal raises a short point as to the terms of the employment contract between Ms. Nottage and BTVI. The trial judge's findings are found in paragraphs 49 and 50 of the judgment. He said:
“49. In considering the matter as a whole I find that the Plaintiff's contract came to an end in August 2012. There is no evidence of any offer of further employment being given to the Plaintiff after August 2012 nor was she ever assigned any work nor paid any salary or other benefit. Mr. Parker, submits that the Plaintiff had a legitimate expectation that her contract would be renewed but does not condescend to provide the basis for this submission. I think that it is also of significance that there is no evidence that the Plaintiff prior to August 2012 as required by the Department of Education made a request that her contract be renewed for the 2012–2013 school year.
50. I am satisfied that the Plaintiff is no longer an employee of the BTVI Institution as her contract expired and was not renewed. Even if I am wrong in my finding that the Defendant was not obligated to and did not renew her contract the failure to pay salary beyond August 2012 and the letter of October 2012 would have brought the contract to an end. In these circumstances I cannot grant any of the Declarations sought by the Plaintiff. Based on my finding that the Plaintiff's Contract came to a natural end I also refuse the claim for damages. For completeness however, I note that if I am wrong and there was indeed a breach of contract I would not have been prepared to go beyond the compensation set out in Section 29 of the Employment Act.”
The Appellant challenges that decision in this appeal. She asserts that her contract remained in existence, that she is entitled to her damages up to today's date and is entitled to return to work at the Respondent. She also claims damages for wrongful suspension.
The Appellant was a Senior Trained teacher at the Respondent, an institution of tertiary education. For the purposes of this action, the Appellant began her employment with the Respondent in August, 2010.
By letter dated 22 nd February, 2010, the Appellant wrote to the Defendant seeking employment. That letter is in the following terms:
“I am writing to apply for the position of lecturer of English for 2010–2011 academic year.
A veteran educator of some twenty-seven years, public and private, and with experience at all levels: elementary to tertiary. I hold a Bachelor of Science degree in English Education from Liberty University, and a Master's degree in Teaching and Learning from Nova Southeastern University.
Further, I have many years of experience as an examiner for the BGCSE English Language Papers 1 and 2.
Currently, I am preparing to pursue studies for the terminal degree of Doctor of Philosophy in Educational Leadership.
Enclosed are copies of my resume and certificates.
Please feel free to contact me by phone or email to arrange a time for an interview.
I look forward to hearing from you, and thank you for your consideration.”
(all emphasis are mine)
In a letter dated 28 th July, 2010 the Respondent wrote to the Appellant a letter in the following terms:
Dear Ms. Nottage,
I am pleased to inform you that you have been appointed as Senior Trained Teacher at the Bahamas Technical and Vocational Institute with effect from August 23, 2010, until such time as the enactment of the B.T.V.I. Act. Your appointment will also be on three (3) months probation.
Please note that you will be paid an annual salary of Thirty five Thousand Seven Hundred Dollars ($35,700.00) on a monthly basis of Two Thousand Nine Hundred & Seventy-five Dollars ($2,975.00). You will also receive a monthly Responsibility Allowance in the amount of Two Hundred Dollars ($200.00) as Head of Department. You are required to record your attendance on a daily basis through use of the Time Log System, located in the main building near the copy room.
Your immediate supervisor will be the Academic Dean.
You will be eligible for four (4) weeks institutional Vacation Leave per annum, and in accordance with General Order Section 1563, Sick Leave may be granted with full salary up to a maximum period of twenty (20) working days or four (4) weeks during a calendar year. You are permitted six (6) call-in days and fourteen (14) days with supporting Medical Certificate.
The following criteria must be met in order to receive full payment:
(a) you must work along with the Academic Dean; and
(b) all grades must be submitted to the Academic Dean for grade review, along with the attendance register.
Attached is a policy agreement which you are required to sign in acceptance of this contract, which can be broken by either side giving one (1) month's notice.
Please sign the attached copy of the contract, and return it to signify your acceptance.
I extend congratulations and wish you success in your appointment.”
The Appellant accepted the appointment and proceeded to perform her duties as a teacher. The BTVI Act came into force on the 1st July, 2011. Prior to that BTVI was operated as a school under the Ministry of Education.
On the 18 th April, 2011 BTVI wrote to the Appellant a letter in the following terms:
“Please be informed that BTVI is prepared to renew your contract for the 2011–2012 school year with effect from August 22, 2011 on the following conditions.
1. That your evaluation has been recorded as satisfactory or above
2. That you have complied with the policies and procedures of BTVI
Confirmation of your desire for continued employment must be communicated in writing to my office no later than June 30, 2011.
As a result of your compliance with the above-cited conditions, your new contract will be prepared for signing during the week of August 22, 2011.
Thank you for the contributions made to the Institution and best wishes for continued success.”
There was no written response to that letter. However, the Appellant did continue her employment with BTVI as a trained teacher for the 2011/ 2012 academic year which began in August, 2011 after the BTVI Act came into effect and after the term specified in the July, 2010 letter.
On the 10 th April, 2012 BTVI wrote a letter to the Appellant in the following terms:
“ RE: CONTRACT & TEMPORARY MONTH TO MONTH EMPLOYEES
Dear Ms....
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