Yergeau et Al v Nygard Holdings Ltd

• Jurisdiction: Bahamas
• Judge: Winder, J.
• Judgment Date: 15 September 2017
• Court: Supreme Court (Bahamas)
• Docket Number: 2011/COM/lab/00046
• Date: 15 September 2017

Supreme Court

Winder, J.

2011/COM/lab/00046

Yergeau Et Al

and

Nygard Holdings Limited

Appearances:

D. Halston Moultrie for the plaintiffs

Keod Smith for the defendant

Employment Law - Breach of contract — Wrongful/unfair dismissal — Whether defendant was plaintiff's employer — Whether plaintiffs were given notice of termination.

Winder, J.

This is an employment dispute.

1 The plaintiffs are brothers and are both citizens of Canada.

2 By contracts of employment dated 28 November 2005, both plaintiffs were employed as Electricians at Nygard Cay Bahamas. The contracts of employment were entered into in Canada where they were recruited. The contract was executed by Ken Grondin who is identified as the Chief Financial Officer and the employer is identified simply as Nygard Cay Bahamas.

3 Both plaintiffs were terminated by letter dated 29 April 2011 with effect from 13 April 2011. The letter of termination which is essentially identical in the case of each plaintiff, is settled as follows:

NYGARD CAY RESORT BAHAMAS

242 677 4000

Nyuard.cavBahamas.Nvoard. com

Christian Yergeau

Nassau, Bahamas

29th April 2011

Dear Christian,

Since the fire in November of 2008 which destroyed more than 50% of Nygard Cay it has been and remains the intention of Mr. Nygard to completely rebuild Nygard Cay bigger and better than before. It's regrettable that to date, Nygard Holdings have not been granted necessary Governmental approvals to start the rebuilding process. Hence, we are finding it extremely difficult to keep staff fully occupied and engaged with relevant work. We remain hopeful that the necessary

permits will be granted at some point. However, as of now we must take steps to reduce our staff costs until such approvals have been granted.

On 13th April 2011 it was verbally communicated to you that your service was no longer required by Nygard Cay. Because of insufficient work at this time, this communication hereby confirms that verbal communication, formally terminating your employment effective 13th April 2011. Enclosed you will find a check in the amount of $5,437.44 (five thousand four hundred and thirty-seven dollars and 44/100) representing one month notice pay, severance pay representing two weeks for each year completed and your accumulated vacation for this year.

Thank you for your service and hard work over the past years and we wish you success in your future endeavors.

Sincerely,

_________ (Signed)

Mike Moore

Project Manager

Nygard Cay

Cc: Mr. Errol McKinney, E M & Associates, P 0 Box: SS6121, Fax number: 356–6203

4 This action was commenced by a Specially Endorsed Writ of Summons dated 5 July 2011. The plaintiffs' claims damages against the defendant for breach of contract and wrongful/unfair dismissal. The Statement of Claim is settled as follows:

• 1. At all material times the First plaintiff is and was employed by the defendant as an Electrician.

• 2. At all material times the Second plaintiff is and was employed by the defendant as an Electrician.

• 3. …

• 4. At all material times the defendant was a Private Resort and a Company Incorporated in the Commonwealth of The Bahamas and operating under the Statute Laws of the said Commonwealth.

• 5. On the 24th day of December A.D., 2005 the First plaintiff and the defendant entered into a Contract of Employment.

• 6. On the 24th day of December A.D., 2005 the Second plaintiff entered into a Contract of Employment with the defendant.

• 7. …

• 8. The terms of the Contract entered into by the [plaintiffs] with the defendant had the same terms which were implied and expressed terms.

  PARTICULARS

  • A. The plaintiffs would work for the defendant in accordance with the Rules set down in the Employment Act of the said Commonwealth.

  • B. The Contract would be governed by Sections 8, 9, 10, 11, 12 and 26 of the said Statute Laws.

  • C. The plaintiffs would be subjected to suspension without pay.

• 9. On the 29th day of April A.D., 2011 the defendant terminated the plaintiffs' Contracts of Employment which constitutes a breach of the terms of the plaintiffs' Contract of Employment.

  PARTICULARS OF BREACH

  • i. The defendant failed to pay the plaintiffs in accordance with Section 10 of the Employment Act. The defendant worked the plaintiffs in excess of the standard hours of work.

  • ii. The defendant is in breach of Section 9 of the Employment Act when the plaintiffs worked 7 days and failed to compensate the plaintiffs in accordance with the said Section of the Employment Act of 2001.

  • iii. The defendant breached Section 11 of the Employment Act by failing to pay the plaintiffs' sick-leave pay.

  • iv. The defendant breached the plaintiffs' Contracts of Employment by failing to pay vacation pay in accordance with Section 12 of the Employment Act.

  • v. The defendant breached the plaintiffs' Contracts of Employment when he failed to pay the plaintiffs' redundancy pay in accordance with Section 26 of the Employment Act of 2001.

  • vi. The defendant was in breach when he suspended the plaintiffs without pay.

  • vii. The defendant was in breach when he failed to pay the plaintiffs' Retention Bonus.

• 10. Further due to the breaches by the defendant the plaintiffs suffered damages and loss.

  PARTICULARS OF DAMAGE AND LOSS

  • • The plaintiffs suffered Loss of Income

  • • The plaintiffs suffered Loss of Overtime Pay

  • • The plaintiffs suffered Loss of Vacation Pay

  • • The plaintiffs suffered Loss of Sick-leave Pay

  • • The plaintiffs...