Wendel McKenzie v Captain Phillip Pinder Bornfree Charters

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 05 October 2012
• Docket Number: IT/NES/1289/09

Between:

Wendel McKenzie

Applicant

and

Captain Phillip Pinder Bornfree Charters

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1289/09

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Elsworth Johnson, Counsel for the Applicant

Mr. Desmond Edwards (holding brief for Mr. Dorsey McPhee), Counsel for the Respondent.

DECISION

1 The Applicant in this matter is claiming firstly, wrongful dismissal and in the alternative, constructive and/or unfair dismissal. There were several witnesses called in this matter on behalf of the Respondent. The Applicant did not call any witnesses on his behalf, even though he initially intended to call at least three.

2 The Respondent advised the court that he intended to give evidence along with his wife and three captains and a mate. Despite the fact that this matter had to be rescheduled several times it finally commenced on March 26 ^th, 2012.

EVIDENCE OF THE APPLICANT

3 The Applicant's evidence is that he is a Master Boat Captain. He says he captained a boat for the Respondent and managed the Respondent's business sometimes when the Respondent was away on vacation. The Applicant's position is that he was employed by the Respondent. According to the Applicant, he commenced working for the Respondent in 1997 on a contract of employment. However, he says the contract was not in writing.

4 The Applicant explained his job as taking tourists out sight seeing, snorkeling, on picnics and also fishing. He was required to arrive at work between 6:30 A.M. and 7:00 A.M. every morning and he did that for twelve (12) years. The Applicant's further evidence is that he got off at 5:00 P.M. but because he had to clean the boat he would end up leaving around 6:30 P.M. or 7:00 P.M.

5 According to the Applicant, his duties as a Master Captain were making sure that the boat was clean, check the engines and to make sure guests were happy. He also did a lot of bookings for the boat. He says he would approach tourists to solicit their support for the business even though he says it was not part of his duties. There was also a mate working on the boat along with the Applicant. The Respondent was never on the boat with the Applicant. According to the Applicant, he also collected money as a part of his responsibility and he would hand the money over to Mr. Pinder. The times when the Applicant would collect money in the Respondent's absence, he would turn the money over to the Respondent when he returned from overseas. A record would be kept of all the funds collected. During the times when the Respondent would be away, the Applicant did not wait to be paid he would pay himself and the mate.

6 According to the Applicant, there were three boats in Mr. Pinder's fleet but the Applicant only, collected for his boat but he says when they were short he would make up the short fall. The Applicant says that he had general responsibility for the management of the three boats whenever Mr. Pinder went away. When asked how he was paid, the Applicant said he was paid $500.00 in cash every week. There was nothing that he could show from Mr. Pinder that could show he was paid $500.00 every week except for a bank reference which the Applicant says he was given as an employee.

7 According to the Applicant the relationship between him and Mr. Pinder was good; however, he says the relationship took a turn for the worst. The reason he says is because he started to inquire about National Insurance contributions, vacation pay, holiday pay and overtime.

8 The further evidence of the Applicant is that after his inquiries he stopped getting jobs to go out. Things didn't last too long after that. The Applicant did however say that even though he didn't have anymore charters assigned to him, it was around hurricane time and things were slow.

9 The Applicant went on to explain that he decided to go to national insurance to tell them that Mr. Pinder wasn't paying. According to the Applicant, Mr. Pinder brought forms to him on several occasions to say that he the Applicant was self employed but the Applicant didn't sign it. According to the Applicant, it was his understanding that Mr. Pinder would pay national insurance. He was of this view because he says he thought Mr. Pinder would pay because every employer is supposed to pay.

10 According to the Applicant, he spoke with one Mr. Maycock at national insurance and he also spoke with one Indira Swaby. The Applicant says he never indicated to Mr. Maycock that he received pay slips, but he did take him the job letter. The Applicant also went to the Department of Labour. Eventually, the Applicant says that there was no more work for him so he turned the keys into one of the gentlemen who worked for Mr. Pinder. He felt he was no longer welcomed. The Applicant shortly thereafter found employment with Stuart Cove. At the time of giving evidence, the Applicant was earning $425.00 per week plus overtime and tips. He began his new employment about three (3) months after leaving Born Free. There were no other benefits.

CROSS EXAMINATION OF THE APPLICANT

11 Under cross-examination the Applicant testified that he submitted a national insurance number to Stuart Cove and when asked when did he become registered he said he thought it was when he was in Freeport. When it was put to the Applicant that for many years Mr. & Mrs. Pinder tried to get him to go and register with national insurance, he said he didn't sign it. Counsel for the Respondent put to the Applicant that the arrangement with Mr. Pinder was $60.00 for half ( ¹/₂) a day and $120.00 for a full day and the Applicant agreed that that was the arrangement for all charter boats. According to the Applicant, Mr. Pinder was supposed to pay him every Friday and if he didn't go out, he didn't expect to be paid. When asked if there was no agreement for $500.00 per week, the Applicant said that that was his average pay.

12 The Applicant was then referred to the credit reference which was referred to earlier in the Applicant's evidence in chief and found at Tab 1. We now set out that credit reference in full below:

“BORN FREE

CHARTER SERVICE

Captain Philip Pinder

P. O.Box SS-5338

Nassau, Bahamas

Hm: (242)393-4114

Fax: (242)304-1956

www.bornfreefishing.com

bornfree@coral wave. com

July 29, 2005

To Whom It May Concern:

RE

Rodney McKenzie

Dear Sir/Madam:

This is to inform you that Mr. Rodney McKenzie has been employed by the Born Free Charter Service as a Master Captain for the past six years. His salary averages $500/week. Please let me know if I can be of further assistance. Thank you.

Sincerely yours.

(Signature)

Captain Philip Pinder”

13 Once referred to the credit reference, counsel for the Respondent asked the Applicant whether he needed a loan at the time to which the Applicant replied, “yes sir I went to Royal Bank of Canada”. When asked what did the bank tell him he needed, the Applicant said that they told him to go and get a job letter. The Applicant admitted that for his benefit, Mr. Pinder had the letter prepared.

14 The Applicant would sometimes fish along with the tourists when he went out and he would share the fish with Mr. Pinder. The Applicant also admitted that he got tips however, he kept the tips for himself. According to the Applicant, he went in to work at 7:00 A.M. and got off around 4:30 P.M. The Applicant confirmed that he took tourists out snorkeling and diving. When asked what would happen if there were no charters all he said was that it was the same arrangement he had with Mr. Pinder.

15 The Applicant was asked if he had testified earlier that he took care of Mr. Pinder's business when he was on vacation and the Applicant said yes.

16 The Applicant was then referred to Tab 2 of the Applicant's bundle to a document entitled “BORN FREE NOTES:” The document contains phone contacts for certain individuals and a schedule for various tours along with the costs. The Applicant admitted that this document was given to all captains. The document is set out in full below:

“BORN FREE NOTES:

Phone Numbers:

Jessie-393-3739

Mike Pinder — 394- 5410 or 477-6910

Cyril-364-8350

Ronnie-324-4211

November 28 — Sunday:

BFII — half day AM—Mr. Butenhojf—moving to Atlantis Saturday evening so call him then to get room number for a wake up call — this is for SHARK fishing -$450 — ticket

November 28 — Sunday

BFIV—7 people — joined up

Rodney — call these Saturday evening to reconfirm then do Wake up calls at 6:30Sunday

2 — Jay Porter — Crystal Palace F1017 — $ 160 (ph 327-7200)

2 Mark McCarthy — Nassau Beach — 659-$ 160 (ph 327-7711)

2 Louis — Club Land'or 208 — $160 — ( ph 363-2400).

1 — Campbell — Atlantis 410 — $ 64 (ph 363-3000)

The next job in the book is for December 6:

BFII — 1 pm — Tim Shockley — Cruise ship Disney Wonder — paying $400 cash — 3 adults, 2 kids — some deep sea, some light tackle probably

Nothing is booked for the big boat after Sunday 28th We will be back Dec. 9. You might get calls for charters from people with the Bahamian Film Festival They have a coupon for 15% discount for charter so prices would be $380 (BFII) or $510 (BFIV). This discount is not to be combined with any other discount and cannot be booked by a travel agent — direct booking only—cash or credit card. The festival starts Dec, 9 but calls might come before then.”

17 When asked if the true story was that Mr. Pinder allowed him to make dollars while he was away the Applicant said that Mr. Pinder didn't want to shut his business down. According to the Applicant he received his licence in 1999. Prior to that he was working as a mate on Mr. Pinder's boat. However, the Applicant's attorney referred him to the letter at Tab 1 and told the Applicant, if he received his licence in 1999 then the letter was a lie. Counsel for the Respondent, asked the Applicant what was the arrangement when he worked as a mate and he said that...