Vylana Leanice Ferguson v L Sun International {Bahamas} Ltd

• Jurisdiction: Bahamas
• Judgment Date: 07 August 1997
• Docket Number: No.85 of 1997
• Court: Industrial Court (Bahamas)

In the matter of The Industrial Relations Act

Vylana Leanice Ferguson

Applicant

and

Sun International {Bahamas} Limited

Respondent

No.85 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

The Facts:

The Applicant commenced employment with the Respondent on May 13, 1985 as a Front Desk Clerk, and was promoted variously and in ascending order to Social Director, Concierge, Duty Manager, and ultimately, Front Office Manager, in 1994.

The Applicant's services with the Respondent were purportedly terminated for just cause on 9th November, 1995, but the Applicant commenced proceedings herein on 16th June, 1997, alleging wrongful dismissal.

The Applicant gave sworn testimony, and was cross examined by counsel for the Respondent. On 17th June, 1997, three witnesses testified on behalf of the Applicant, and were similarly cross examined, thus concluding the testimony for and on behalf of the Applicant.

The Hearing was adjourned to 3rd July, 1997, at which time the Respondent was scheduled to open its case, and call witnesses.

The Hearing continued at 10am. on July 3, 1997, at which time counsel for the Respondent advised that the Respondent conceded liability to the Applicant for wrongful dismissal, and further would be prepared to negotiate a settlement with the Applicant.

The Chairman advised the parties, that in the circumstances, and in view of section 53G of the Industrial Relations {Amendment} Act, 1996, which provides that the Tribunal shall “…do all such things as appear right and proper for reconciling the differences between the parties”, the Tribunal therefore recommended and encouraged the inclination of both parties to attempt to negotiate an amicable settlement of the dispute.

Both parties agreed to attempt to arrive at a settlement prior to Monday, 7th July, 1997, and the Tribunal ordered that they appear at 10am. on 7th July, 1997, and in the event of their failure to arrive at a settlement, they be prepared to argue forthwith their respective positions as to quantum of damages.

The Tribunal heard arguments as to quantum by both parties and deliberated as follows:

Representative of the Applicant: Mr. Obie Ferguson Jr.

Counsel for the Respondent: Edgar Seligman Esq.

DECISION AND REASONS

1 In view that the Applicant was wrongfully dismissed {as conceded by the Respondent}, the primary consideration for the Tribunal is the appropriate and reasonable period of notice of termination that the Respondent ought to have given to the Applicant.

2 The Tribunal is guided by the Decision of Mr. Justice K. C. Henry and President Joseph A. Luckhoo in the Court Of Appeal {Civil Side} case of Tropigs Limited v. Isaiah Robinson Rolle Jr. No. 13 of 1983, in which the court held inter alia that “what is reasonable notice will be determined by a number of factors e.g. age, length of service with the employer, responsibilities of the employee, his experience, status, training, qualifications and chances of alternate employment…”

3 The Applicant was 31 years old at the time of her dismissal; she had been employed by the Respondent for approximately 10 ¹/₂ years, and she was third in line of authority at the Ocean Club. Her immediate superior was the Executive Assistant Manager, who in turn reported to the General Manager.

4 The Applicant attended supervisory and managerial courses both locally and abroad, and participated in a number of 1 day management seminars {in-house}. She was also involved in an Inter-Departmental cross training program for six {6} months.

5 She supervised a staff of thirteen {13} comprising five {5} front desk receptionists, three {3} concierges, and five {5} bellmen, and her salary at the time of her dismissal was Five Hundred and Thirty-five dollars {$535.00} per week.

6 Having regard to the factors set out in the Tropigas case mentioned supra, we are of the view that a period of seven {7} months notice would have constituted reasonable notice to her in the circumstances.

7 The Applicant attempted to mitigate her loss almost immediately after her dismissal; she attempted without success to find comparable employment at Sandals, and a number of local businesses. She stated that she could not find satisfactory alternative employment, and decided to become self-employed in her family's interior decorating business. She commenced employment in the family business three {3} months after her dismissal. She further stated that she earns an average weekly salary in the family business of Three Hundred Dollars {$300.00}

8 We accept the evidence of the Applicant that while the General Manager communicated certain of her conditions of employment to her orally, the company never availed her of the written details thereof, viz., the handbook, the Group Insurance Booklet, and the Pension Plan.

9 In the circumstances, we therefore agree with the submission of the Applicant's representative, that her purported suspension without pay {as authorised and set out in the handbook} on 6th November, 1995, was unlawful in that it contravened the Respondent's basic obligation to pay wages — Hanley v. Pease & Partners Ltd. [1915] 1 KB 698, and we therefore feel that the Applicant was indeed constructively...