Lester Jonas v Jumby Bay Island Company

JurisdictionAntigua and Barbuda
JudgeWard JA
Judgment Date17 April 2024
Judgment citation (vLex)[2024] ECSC J0417-1
Docket NumberANUHLTAP2019/0002
CourtCourt of Appeal (Antigua and Barbuda)
Between:
Lester Jonas
Appellant
and
Jumby Bay Island Company
Respondent
Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

ANUHLTAP2019/0002

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil Appeal — Appeal against decision of Antigua and Barbuda Industrial Court — Employment Law — Dismissal by reason of redundancy — Challenge to compensatory award — Whether the Industrial Court erred in declining to award compensation for manner of dismissal, future loss of earnings, overtime/premium pay and public holiday pay — C6, C7, C14, C15, C26, C27 of the Antigua and Barbuda Labour Code Cap. 27 — Whether the Industrial Court erred in failing to award the appellant compensation for unpaid allowances on account of the restructuring of his salary

The appellant, Mr. Lester Jonas, was a Security Manager at the respondent company, commencing employment on 3 rd May 2010. In April of 2012, the respondent company restructured the remuneration package of its managers in accordance with the Government's revision of its schedule of non-taxable allowances. The effect of this re-structuring was an increase in the appellant's net income as statutory deductions only applied to his base pay. On 8 th January 2013, the appellant formally signed the contract of employment.

By letter dated 18 th February 2015, the respondent terminated the appellant's employment on the ground of redundancy. The appellant received one month's pay in lieu of notice with severance accrued at one month for each year worked; accrued vacation up to and including February 2015; and his pro-rated salary up to and including 19 th February 2015. The appellant also received an ex-gratia payment equivalent to 3 months' salary. The total amount paid to the appellant was the sum of $97,307.41, all payments being subject to the deduction of the applicable taxes.

The appellant filed a reference with the Industrial Court claiming unfair dismissal and that he was entitled to compensation under several other heads of loss, namely future loss of earnings, loss for manner of dismissal, overtime/premium pay, holiday pay and unpaid allowances. The Industrial Court, however, granted an award to the appellant under the sole head of immediate loss of earnings and refused compensation under the other heads referred to.

Being dissatisfied with the decision of the Industrial Court, the appellant appealed to this Court and the issues which fell for determination were: (i) whether the Industrial Court erred in declining to award compensation for the manner of dismissal, future loss of earnings, overtime/premium pay, and public holiday pay and (ii) whether the Industrial Court erred in failing to award the appellant compensation in relation to unpaid allowances due to him from the respondent on account of the restructuring of his salary with effect from 1 st April 2012.

Held: allowing the appeal in relation to the claims for overtime/premium and holiday pay, dismissing the appeal in relation to the claims for manner of dismissal, loss of future earnings and unpaid allowances and making no order as to costs, that:

  • 1. The appellant, being an employee within the meaning of the Antigua and Barbuda Labour Code, was entitled to premium pay at the prescribed statutory rate for hours worked in excess of the 40-hour work week. There was no evidence before the Industrial Court that the appellant was remunerated at a higher salary level to compensate for him having to work overtime and on holidays. In addition, the Industrial Court's conclusion that ‘if payment for overtime and off days was intended for the employees and other managers this benefit would have been negotiated and included in the contract or memorandum of agreement’ fails completely to address the provisions of the Labour Code prescribing mandatory minimum standards in relation to premium pay for employees. The effect of these provisions is that where the contract of employment expressly derogates from these minimum standards or is silent in relation to premium pay, those terms are null and void to that extent and the provisions of the Labour Code apply. However, in the absence of some evidential basis that provides at least some rough estimate of the number of overtime hours worked by the appellant, only a nominal sum should be awarded under this head, set at $5000.00.

    Sections C6, C7, C26 and C27 of the Antigua and Barbuda Labour Code Cap. 27 of the Laws of Antigua and Barbuda applied.

  • 2. The Industrial Court was wrong not to have considered the provisions of Division C of the Labour Code in relation to holiday pay as (1) the statement in the respondent's policy document contradicts the respondent's contention that the respondent had a policy of not paying holiday pay to managers and (2) there is no evidence of any negotiated alternative means of compensation for the appellant in relation to holiday pay, which does not run afoul of the minimum statutory standards. Division C15 of the Labour Code therefore applied, and the appellant is entitled to compensation for holiday pay. The appellant having not furnished any evidence to establish the number of holidays on which he worked, an award under this head can only be for a nominal sum, set at $5000.00.

    Sections C6, C7, C26 and C27 of the Antigua and Barbuda Labour Code Cap. 27 of the Laws of Antigua and Barbuda applied.

  • 3. To succeed on a claim for loss by reason of manner of dismissal there is an evidential burden on the employee to adduce evidence of the likelihood or risk of financial loss to the employee as a result of the manner or circumstances of their dismissal, or that the manner or circumstances of the dismissal made the employee less acceptable to potential employers or exceptionally liable to selection for dismissal. The evidence before the Industrial Court falls well short of establishing a causal link between the manner or circumstances of the appellant's dismissal and his failure to secure employment. There was no evidence before the Industrial Court that any of the employers to whom he reached out were even made aware of the circumstances of his dismissal, which would provide some basis for drawing an inference that that was the reason for them not engaging him. Resultantly, the appellant has failed to discharge this evidential burden and the Industrial Court did not err in refusing to make an award under this head.

    Antigua Village Condo Corporation v Jennifer Watt Civil Appeal No. 6 of 1992 (delivered 7th February 1994, unreported) followed; Antigua and Barbuda Transport Board v Anderson Carty ANUHLTAP2020/0005 (delivered 27th July 2023, unreported) followed; Norton Tool Co. v Tewson [1973] 1 All ER 183 applied; Lewis v Courts (Antigua and Barbuda) Ltd. Reference No. 13 of 1997 applied.

  • 4. An appellate court should accord weight to the findings of facts made by the Industrial Court mindful of the advantage they enjoyed over the appellate court, having seen and heard the witnesses. The Industrial Court having accepted (1) the evidence of the respondent's witnesses relating to the circumstance surrounding the re-structuring of the appellant's salary, (2) that the appellant did not sign the formal contract containing these terms under duress and (3) that the restructuring did not operate to the appellant's disadvantage as his net take-home pay was higher since his statutory deductions were only applied to his base pay, there is no basis for disturbing any of the findings of fact made by the Court. The decision of the Industrial Court not to make an award for unpaid allowances is therefore upheld.

Appearances:

Mr. Kendrickson Kentish for the Appellant

Ms. Nelleen Rogers Murdoch for the Respondent

Ward JA
1

This is an appeal by Lester Jonas (“the appellant”) against a decision of the Industrial Court of Antigua and Barbuda (“the Industrial Court”) in relation to the award of compensation for the appellant's unfair dismissal from his position as Security Manager at Jumby Bay Island Company (“the respondent”). The Industrial Court made an award in favour of the appellant under the head of immediate loss of earnings, in a sum equivalent to six months full salary, with a further three months at 50% of his salary, less an ex-gratia payment previously made by the respondent. The Industrial Court, however, refused to make any award under the heads of future loss of earnings, manner of dismissal, unpaid allowances, overtime work and public holiday pay. Being aggrieved, the appellant filed a Notice of Appeal on 3 rd May 2019 challenging the decision of the Industrial Court. The notice of appeal sets out several grounds of appeal, but at the hearing the appellant's counsel indicated that he would no longer be pursuing that ground of appeal which sought the award of exemplary damages. The remaining grounds give rise to the following issues on this appeal:

  • (1) Whether the Industrial Court erred in declining to award compensation for (a) the manner of dismissal, (b) future loss of earnings, (c) overtime/premium pay and (d) public holiday pay;

  • (2) Whether the Industrial Court erred in failing to award the appellant compensation in relation to unpaid allowances due to him from the respondent on account of the re-structuring of his salary in with effect from 1 st April 2012.

Background
2

The appellant was employed by the respondent as Security Manager from 3 rd May 2010 to 19 th February 2015. His initial terms and conditions of employment were communicated to him via an email from the respondent's CEO dated 27 th April 2010 with a promise to subsequently incorporate these terms into a ‘standard management letter of employment’ following a review by the respondent of its human resources programs. On commencement, the appellant was earning a gross monthly salary of $9,000.00, and, after the relevant statutory...

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