Winston Cartwright v John S. George

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 24 April 2013
• Docket Number: IT/NES/1331/09

Between:

Winston Cartwright

Applicant

and

John S. George

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1331/09

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Frank Carter, Labour Consultant for the Applicant

No appearance by or on behalf of the Respondent

DECISION

1 This matter commenced on the 29 ^th day of October, 2012. At the outset, there being no appearance by the Respondent, despite being duly served, the representative of the Applicant made an application for joinder pursuant to Section 16 (1) of the Industrial Relations (Tribunal Procedure) Rules 2010 and Section 65 (2) of the Industrial Relations Act, Chapter 321 of the Statute Laws of the Bahamas. The Sections are set out below:

16. (1) “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.”

65. (2) “The Tribunal may, during the course of any dispute pending before it direct that any agents of the employer or any successors to or any assignees of, the business of the employer who is a party to the dispute shall be joined or substituted as a party to the dispute, and any order or award of the Tribunal in such dispute (whenever made) shall, save to the extent that it is otherwise expressly provide in such order or award, be binding on the successors or assignees of the employer.”

2 The Tribunal acceded to Mr. Carter's request and joined Mr. Andrew Wilson in his personal capacity.

EVIDENCE OF MR. WINSTON CARTWRIGHT:

3 At the time of giving evidence, Mr. Cartwright was 68 years of age. He testified that his last place of employment was John S. George. He commenced employment there on the 18 ^th July 1966. At the time of termination, he was a Manager. In fact he became a Manager from as far back as 1971. The only other employment the Applicant had was with the General Hardware Store which was in 1958.

4 The Applicant was terminated on March 17, 2009, however he never received a letter of termination. The Applicant did sign a document purporting to be a release. In 2008 Mr. Wilson unilaterally instituted a three day work week for the Applicant. Prior to the reduction in days, the Applicant was earning some $980.00 per week. The employer was paying National Insurance Contributions but at some point did stop. Under threat from the Applicant, the contributions were brought current. There was also a pension plan to which the Applicant contributed 5% from his salary each week.

5 The Applicant received his pension in a lump sum. The Applicant and about six (6) others were advised by the secretary of the Respondent to apply for their pension as Mr. Wilson didn't want them to get it. The Applicant could not remember which insurance company John S. George had the pension plan with, however, his evidence is that his pension started in the early 1980's. The Applicant's further evidence is that for a while, the Respondent was deducting the pension but not paying it over to the insurance company. This was prior to Mr. Wilson taking over. According to the Applicant, they received statements yearly every January.

6 The Applicant went on to testify that in the first quarter of 2008, he was put on a three day work week. Shortly thereafter, it went to two days. He then worked on Tuesdays and Thursdays and was paid every two weeks. In early 2009, the Applicant was again unilaterally placed on a one (1) day work week. It was at this point that the Applicant says he and Mr. Wilson had a conversation. A Mr. Sands, along with Mr. Wilson met with the Applicant. Mr. Sands was the Financial Comptroller and at the time of this hearing according to the Applicant was employed with Solomon's Super Club. The meeting was to inform the Applicant of the one day work week. When the Applicant was told of the one day work week he asked them whether he could collect his National Insurance and still work. It was at this point that the Applicant says Mr. Wilson produced a letter for him to sign. The letter was prepared in minutes. Mr. Wilson wrote the letter to National Insurance or he had it written for the Applicant to sign. The Applicant's evidence is that he never wrote anything.

7 It took about three months for the Applicant to receive his funds from National Insurance. However, due to the Applicant's age, he could only receive a reduced pension because he was not 65 years of age at the time. When asked if he believed that he was forced to resign, the Applicant responded by saying that he believed he was forced out of John S. George. The Applicant says he was at the Cable Beach Store for three years. They were having a problem there. Mr. Hutton wasn't making any money and so they brought the manager from Cable Beach to the Palmdale Store and sent the Applicant to Cable Beach to try and turn things around.

8 The Christmas before the Applicant went to Cable Beach the store only made $80,000.00 per month. After the Applicant went there, he brought the earnings up to $160,000.00 per month. The Applicant was there for some fifteen (15) months. The arrangement was that the Applicant collected a commission every month except for the first month he was there. This was in addition to salary. Every manager was on that program if they made their quota. The Applicant was paid ¹/₂ % which was shared with the shop staff with the manager receiving the bigger sum. There were four staff members at the Cable Beach Store including the Applicant. The typical amount of the percentage every month was between $250.00 — $300.00.

9 In or about 2008, the Applicant was transferred back to the Palmdale Store. This was when his work week was reduced. There was also a medical plan in which the Applicant was enrolled. However, the medical insurance was cancelled after Mr. Wilson purchased John S. George.

10 The Applicant further testified that as it relates to the medical plan, he attended doctor for a back problem. He went for X-rays, actually he went for an MRI. He paid the deposit and gave all of the information which was needed. This was early in 2008. Some months after, the hospital called the Applicant for the remainder of the money because the insurance hadn't been paid from the previous January. According to the Applicant, in the mean time deductions were being made from his salary for the medical plan. This apparently was going on for about a year.

11 Eventually, the Applicant confronted Mr. Wilson on the shop floor and was invited upstairs. Once upstairs, the Applicant asked Mr. Wilson about his back commission and the money for his medical insurance which had been deducted from his salary on a consistent basis for about one (1) year.

12 The money deducted however, was not forwarded to the insurance company. The Applicant also asked for the $900.00 he had to pay Doctor's Hospital. The Applicant calculated his out of pocket as a result of this to be in the region of some $5,000.00. This amount was refunded to the Applicant in installments of $500.00 every two weeks.

13 According to the Applicant, he was never notified by the Respondent or Mr. Wilson about the cancellation of the medical insurance, he only discovered it after he attended Doctor's Hospital. The Applicant could not recall the name of the insurance company. The Applicant was subsequently called in to the office by Mr. Wilson to be advised that the company couldn't pay him even for the one day's work per week. In light of this the Applicant then asked Mr. Wilson what was he entitled to for his forty-three (43) years of service and was told by Mr. Wilson “NOTHING”, he couldn't afford it. The Applicant responded by saying, “Forty-Three (43) years and I get nothing?” The Applicant was then told that that was his last day on the job as there would be nothing for him to do. The Applicant finished the day and left work at 5:00 P.M. He eventually received a $3,000.00 cheque a day or two after. He was never really told about the cheque. When the Applicant was called into the office by Ms. Hunt he was told by her that she had a cheque for him from Mr. Wilson but he had to sign a letter before he could receive it. The Applicant went and told his wife what had transpired and showed her the cheque and his wife's first remark was; “How are we going to manage, how are we going to pay the bills?”

14 Since being terminated, the Applicant has put out feelers for employment but up to the time of giving evidence, wasn't successful in finding employment. He believes he is having this difficulty due to the fact that he was already 64 years of age at the time he was terminated. According to the Applicant, when he worked one day per week, he took home $200.00 every two weeks. The Applicant says he never asked Mr. Wilson to reconsider his position. However, he says he saw him one day in front of his store and Mr. Wilson said to him; “I see you have me in front of the Tribunal heh?” The Applicant did not pass comment. The Applicant's further evidence is that when his work week was reduced, a young man who the Applicant believes is a cousin to Mr. Wilson's wife who is an expatriate, was working there part-time, but the Applicant doesn't think he was ever on a reduced work schedule. As far as the Applicant was aware, he was the only one who was put on a reduced work week ultimately ending in a one day work week. The Applicant's evidence is that the young man mentioned above was not a Bahamian.

15 According to the Applicant, there was yet another gentleman who was referred to as “J.F.K.” (Kennedy). He was like the maintenance man for the stores and Mr. Wilson's house. He was from the same place the other person was from. The Applicant believes it was Guatemala or one of the South or Central American countries. The Applicant says he believes the person was...