Pestaina v Dickenson Bay Mamagement Ltd (Dba Sandals Antigua)
| Jurisdiction | Antigua and Barbuda |
| Judge | Pilgrim, P. |
| Judgment Date | 25 March 2010 |
| Court | Industrial Court (Antigua) |
| Docket Number | 9 of 2008 |
| Date | 25 March 2010 |
Industrial Court
Pilgrim, P.t; Benjamin, M.; Aymer, M.
9 of 2008
Dr. David Dorsett of Watt & Associates — Attorneys-at-Law for the Employee
Mr. Roger Forde Q.C. and Ms. Arianne S. Hill of Hill & Hill — Attorneys-at-Law for the Employer
Employment law - Whether employee under a contract of service or a contract for services — If a contract of service, whether unfair dismissal — Antigua Labour Code — Tests employed by courts to determine the difference between an employee and an independent contractor — Finding that first contract was for services — Purported employee hired others and took the risks of the business venture.
Dickenson Bay Hotel Management Limited trades under the name DBA Sandals Antigua. It may be conveniently referred to in this judgment as “Sandals.” It is the Employer in this Reference. It is a company which was established pursuant to the Companies Act Cap. 94 of the Laws of Antigua and Barbuda.
Sandals is engaged in the business of hotel management. It provides employment for persons in Antigua and Barbuda and other Caribbean islands.
Hyacinth Pestaina resides at Cedar Valley Springs, St Johns in Antigua and Barbuda. She is sometimes referred to as “the Employee” or “Mrs. Pestaina” in this Reference.
Mrs Pestaina and Sandals entered into an agreement or contract in writing (afterwards referred to as “the first contract”) dated December 16, 1999. In the first contract Mrs Pestaina agreed to be employed as Sandals Shop Manager. Either party was at liberty to terminate the first contract by giving to each other thirty (30) days notice in writing. (The first contract was admitted into evidence as “HP1-1.”
Mrs. Pestaina trading as VISAGE, entered into a contract with Pinebrook Management Co. Ltd. Pinebrook is owned by Sandals. This agreement shall be referred to as “the second contract.”
The second contract between the two parties is dated January 16, 2007. It is entitled “Gift Shop Contract” and was “valid for a period of three months commencing the 1st day of December 2006 and expiring the 28th day of February 2007.”
The terms of the second contract were similar to those which were contained in the first contract. Such terms included (a) payment of a commission of 25% of sales after a deduction for certain expenses; (b) her status was that of “independent contractor.” and (c) Clause 3(h) of the second contract provided that Mrs Pestaina trading as VISAGE “employ at its sole expense, such personnel as are required to conduct the business of the Gift Shop.”
When Mrs. Pestaina entered into the second contract with Pinebrook, it was engaged in the operation of a hotel. It is named Grand Pineapple Beach Resort. It is located at Long Bay in the parish of St. Philip in Antigua and Barbuda. In the Witness Statement of Franklyn Eaton for the Employer, he described Pinebrook as “a competitor of the Employer.”
In her answer to Dr. Dorsett, Mrs. Pestaina stated that there is no relationship between the customers at Sandals Dickenson Bay and Pineapple. Pineapple is located at the other end of the island 16 miles away. She could not decide to appoint someone else to perform her duties at Sandals.
In her answer to Mr. Forde Q.C. for the Employer, Mrs. Pestaina stated as follows:
“I was told that it was Sandals' policy to take back the Gift Shop. I was then invited by the Employer to apply for the position of Shop Manager. I gave the application to Mr. Eaton, the then General Manager. All of this took place prior to my termination. I did not get the job as Gift Shop Manager.”
The first contract was terminated by Sandals in a letter to Mrs. Pestaina dated June 05, 2007. Upon termination of this contract, Sandals paid Mrs. Pestaina $27,369.99 which according to Sandals was one (1) month's pay in lieu of notice. The notice of termination was admitted as “HP-2.”
In her Witness Statement, Mrs. Pestaina stated that her “last earnings with Sandals was $17,610.00 per month.” No evidence was led with regard to whether or not this represented an average monthly commission payment for the period of her employment.
Since the termination of the first contract Mrs. Pestaina at paragraph [22] of her Witness Statement stated that she was “self employed doing work in interior designing and decorating, corporate grooming, uniform design and construction.” According to Mrs. Pestaina “her earnings average $4,500.00 per month.” No other evidence was led with regard to mitigation.
Dr. Dorsett Counsel for Mrs Pestaina filed a Reference dated October 09, 2008. Her Employee's Memorandum and Witness Statement were filed on July 02, 2009.
The Employer's Memorandum and Witness Statement were both filed on September 30, 2009.
The issues for determination are as follows:
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(i) Whether or not Hyacinth Pestaina was employed by Sandals from December 16, 1999 to June 05, 2007 as an employee under a contract of service or a contract for services in accordance with the first contract.
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(ii) If Mrs. Pestaina was employed as an employee under a contract of service was she unfairly dismissed having regard to a letter from Sandals to her dated June 05, 2007.
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(iii) If there is a finding of unfair dismissal, what is the measure of damages to which she may be entitled.
The Labour Code defines the term “employee” in Section A5 in the following manner:
“employee” means 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 or labour, whether the contract be oral or written, expressed or implied; and the term includes a person whose services or labour have been interrupted by a suspension of work during a period of leave, temporary layoff, strike or lockout, as well as an apprentice whose services or labour may be designed primarily to train such apprentice; but the term does not include established employees of the Government;”
Dr. Dorsett Attorney-at-Law for the Employee filed Written Submissions on December 04, 2009. Dr. Dorsett raised certain maters at paragraphs [6] to [38] of his submissions.
Dr. Dorsett provided this Court with “A brief survey from the legal landscape of the Commonwealth Caribbean” which according to him “indicates that the statutory definition of “employee” (sometimes termed “worker” or “workman”) is far from uniform.”
Counsel provided this Court with references to the Holidays with Pay Act Cap.348 of the Laws of Barbados, the Labour Act Cap.297 of the Laws of Belize, the Labour Ordinance 1966 of St Kitts Nevis and Anguilla (as it then was), and the Industrial Relations Act Cap. 88:01 of the Laws of Trinidad and Tobago.
It may be of some interest to academic writers to compare the definition of “employee” which is contained in the laws of different jurisdictions. Such an analysis however does not assist me to determine the real meaning of the term “employee” referred to at Section A5 of the Antigua and Barbuda Labour Code. (afterwards referred to as “the Labour Code”).
Lord Denning MR in Ministry of Housing v. Sharp [1970] 1 All E.R. 1009 (CA) at page 1015 Letter'd' stated as follows:
“I find no help from this analysis of other Acts of Parliament. I go simply by this 1954 Act.”
Dr. Dorsett submits at paragraph [15] of his Written Submissions and elsewhere that “The employee” under the Labour Code is one working under a contract “personally to perform any services or labour….”
Dr. Dorsett submits at paragraph [17] as follows:
“However, the draftsman of the Labour Code chose to define the contract entered into by an employee not in terms of a “contract of service” but in terms of a contract “personally to perform any services or labour,” a type of contract that from a reading of other labour legislation is akin to “a contract personally to execute any work or labour” and which may be distinguished from a “contract of service” or a contract of apprenticeship. The decision not to describe an employee in terms of “contract of service” was perhaps deliberate and not accidental as the Labour Code has been described in Universal Caribbean Establishment v. Harrison [1997] ECLR 350 at 352B by Bryon, C.J. (Ag.) as “an innovative and important enactment, which made substantial changes to the industrial law.”
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(i) At paragraph [21] of Dr Dorsett's Written Submissions Counsel states as follows:
“It is respectfully submitted that the definition of “employment” under (Section A5) of the Antigua and Barbuda Labour Code is pari materi with the definition of “employment” under (Section) 82(1) of the United Kingdom's Sex Discrimination Act.”
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(ii) In support of Dr Dorsett's submission he cites Percy v. Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 A.C. 28, Kelly v. Northern Ireland Housing Executive [1999] 1 A.C. 428 and Mirror Group Newspapers Ltd v. Gunning [1986] 1 W.L.R. 546.
At paragraph [1] of Dr. Dorsett's Written Submissions Counsel states inter alia as follows:
“The instant case is one where Mrs Hyacinth Pestaina, has brought a claim of unfair dismissal against Sandals Antigua.”
(The emphasis is the Court's)
Counsel who appear before this Court and cite English case law which is based on English discrimination legislation in support of arguments which are adumbrated by Dr. Dorsett at paragraphs [23] to [25] of this judgment should actually read those cases. This will allow them to determine whether or not those cases are in harmony with or collide with the Labour Code.
Another reason why this Court urges Counsel to study the English legislation and the cases cited is for Counsel to feel sure whether or not those authorities really assist or harm their clients'...
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