Derrick Nicholas v Allied Hotels and Resorts T/A Grand Royal Antiguan Beach Resort
| Jurisdiction | Antigua and Barbuda |
| Judge | De Freitas, Chairman |
| Judgment Date | 01 December 2017 |
| Docket Number | REFERENCE NO: 36 of 2014 |
| Court | Industrial Court (Antigua) |
The Hon. St. Lawrence de Freitas Chairman
The Hon. Dr. Hayden Thomas Member
The Hon. Megan Samuel-Fields Member
REFERENCE NO: 36 of 2014
IN THE INDUSTRIAL COURT
Ms. Cicely Charles of Antigua Hotel Management Association, Representative for the Employee
Ms. Kari-Anne P. Reynolds of Hill & Hill, Attorneys-at-Law for the Employer
By reference filed on the 31 st July, 2014 the Employee Mr. Derrick Nicholas (hereinafter referred to as Mr. Nicholas or the Employee) who lives at Willikies Village, Antigua has filed a complaint and lists the issues in dispute as 1. Breach of Contract and 2. Unfair Labour Practices and he is claiming that he is entitled to compensation.
Allied Hotels and Resorts Ltd. (hereinafter referred to as the Resort or the Employer) is a Hotel at Deep Bay, Antigua, doing business as Grand Royal Antiguan Beach Resort. It provides accommodation, food and beverage services to its guests on the Island. The Head office of the Company is in Trinidad.
The Employee filed his Memorandum on the 19 August 2014. In his memorandum he complains that in April 2013 he had certain communication with the owner of the resort, Mr. Issa Nicholas, where he showed interest in obtaining a Job at the Resort as their Resident Manager.
The Employer filed their Memorandum on the 5 th November 2014. They deny that Mr. Issa Nicholas is the owner of the Resort but concedes that he is a shareholder and officer of the Company.
The Employer admitted that they sent the Document complained of by e-mail dated 10 th May 2013. They however maintain that it was a draft proposal and they deny that they entered into any contract of service with the Employee.
The Employer contend that there was no employment contract between the Employer and the Employee
The Employer further contends that to the extent that the Employee has a claim against the Employer it is one for breach of contract. Their plea is that this Court has no jurisdiction to hear the matter.
Mr. Nicholas gave evidence that during the Month of April 2013 he had ‘reached out’ by E-mail and telephone to the owners of the Grand Royal Antiguan Beach Resort (the Allied Hotel and Resort with Headquarters in Trinidad [The Resort]). He told the Court that he indicated his interest in obtaining a job as a Marketing Executive.
Mr. Nicholas further gave evidence that after several communications with the Resort, that on the 10 th May 2013 he received a job offer from the owners of the Resort. He also told the Court that on receipt of the offer, he immediately signed the document and returned it to Employer's head office in Trinidad.
The Employee told the Court that the Document he received contained the starting date for the employment to begin, that is, on the 1 st June 2013 and also included a stated salary of US$4000.00 together with other fringe benefits
The Employee also told the Court that during that same time period, he had also received other Job offers from other companies that he felt he had to refuse, since he was committed to the Resort.
The Employee further gave evidence that on 16 th May 2013 he received an e-mail from the Headquarters of the Resort in Trinidad telling him that the offer made to him “has been withdrawn”
The Resort's evidence was given by Mr. Ashram Ramnarine, the group Corporate Controller. He told the Court that the Resort had preliminary discussions by telephone with the Employee; that in response to the said phone call, the Employee (by e-mail dated May 08, 2013) provided the Employer with a compensation package for the position of Resident Manager of the Grand Royal, Antigua.
The Resort's evidence is that they sent the Employee a proposal containing a standard offer letter of managers of the Employer; that the letter was intended for the Employee's review and to be the basis of further discussions; that further, the letter was not signed and was never intended for the Employee's approval.
The Resort's further evidence is that after the Employee purported to have accepted the position of Resident Manager that he himself requested (by e-mail dated May 13, 2013) that the Employer contact him so that he can conclude negotiations. They maintained that at all material times they were engaged in preliminary negotiations with the Employee.
The Industrial Court Act (Chap 214) Sec. 10 (3)b states:
(3) Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall-
(a) --------------------------------------------------------
(b) act in accordance with equity, good conscience and the substantial merits of the case before it having regard to the principles and practices of good industrial relations and, in particular, the Antigua and Barbuda Labour Code .
The Antigua and Barbuda Labour Code (Cap 27) at Section A5 gives the meaning of Employee as:
“any person who enters into or works under or stands ready to enter into or work under, a contract with an employer, personally to perform any services of labour”
The Industrial Court was established by the Industrial Court Act, Cap 214 (“the Act”). Section 4 of the Act reads:
(1) For the purposes of this Act, there is hereby established an Industrial Court which shall have the jurisdiction and powers conferred on it by this Act.”
In the matter of Antigua & Barbuda Transport Board v. Anderson Carty and others, Webster JA [AG] in his dicta stated
The Act sets up a structure for the Industrial Court to deal with disputes between employers and employees. (ECSC Court of Appeal reference ANULTAP2015/0006)
Matters to be determined are as follows:
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(a) Does the Industrial Court have Jurisdiction to hear and determine matters of the common-law doctrine of “Breach of Contract”?
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(b) Is the Employee's claim that he was not treated fairly or in accordance with good industrial relations, (Unfair Labour...
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