Vanetta Rodgers Claimant v Airport Services Antigua Ltd Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Remy J
• Judgment Date: 14 March 2013
• Judgment citation (vLex): [2013] ECSC J0314-4
• Court: High Court (Antigua)
• Date: 14 March 2013
• Docket Number: CLAIM NO. ANUHCV 2012/0 770

[2013] ECSC J0314-4

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV 2012/0 770

Between:

Vanetta Rodgers

Claimant

and

Airport Services Antigua Ltd

Defendant

RULING

1 Remy J.: By Claim Form and Statement of Claim filed on 28^th November 2012, the Claimant Vanetta Rodgers (Mrs. Rodgers) claimed against the Defendant Airport Services Antigua Ltd. (the Defendant Company) the following relief:-

Remy J

• 1. A declaration that the termination of the Claimant's employment by letter dated the 21^st day of November 2012 on the stated grounds of redundancy is unlawful and a breach of the employment contract and that the Claimant remains general manager and executive director of the Defendant.

• 2. An injunction to restrain the defendant, its servants and or agents for acting upon the Board decision to terminate the employment of the Claimant dated the 21^st of November 2012 or in any way from interfering with the employment contract of the claimant until further order of this Court.

• 3. Damages for breach of contract.

• 4. Costs.

2 By Notice of Application filed on the 28^th November 2012, Mrs. Rodgers applied to the Court for an interim injunction, seeking an Order, namely that:

• 1. An injunction be granted ordering the Defendant, its members, servants and agents from acting upon the decision of the Board of Directors purported to be made on the 22^nd November 2012 whereby the Claimant is terminated from the position of General Manager of the Company effective the 30^th November 2012 on grounds of redundancy or from otherwise interfering with the Claimant in the due performance of her functions as the General Manager of the Company until further order of the Court.

• 2. Costs.

3 The grounds of the application were stated as follows:-

• a) The Claimant is the General Manager of the Defendant Company since 2007 and has performed the functions without incident.

• b) The Claimant is being maliciously removed by fellow beneficial shareholders and the Executor of her late husband's Estate on the stated grounds of redundancy.

• c) The removal of the Claimant is likely to prejudice her employment and beneficial interest in the Company and the Estate of her late husband of which the Defendant company forms a substantial part.

• d) There is no redundancy.

• e) Just and equitable.

4 The Notice of Application was supported by an Affidavit of Mrs. Rodgers filed on the 28^th November 2012 (the First Affidavit).

5 When the matter came up for hearing on the 30^th November 2012, an Order was made in the following terms:-

"AND UPON THE DEFENDANT by its Counsel giving an undertaking that the Defendant will not terminate the employment of the Claimant or otherwise interfere with her employment until the hearing of the application;

• 1) Defendant do file and serve an Affidavit in Reply on or before the 11^th December 2012.

• 2) The Claimant be at liberty to file and serve an Affidavit in Response on 14^th December 2012.

• 3) The hearing of the application is adjourned until the 18^th December 2012 at 9. a.m in the forenoon."

THE COURT DOTH ORDER THAT:-

6 A Second Affidavit of Mrs. Rodgers was filed on the 4^th day of January 2013 (the second Affidavit.) Several Exhibits were attached to the said Affidavit.

7 The hearing of the application for injunctive relief took place on the 21^st January 2013, after being adjourned on application by Counsel for the Claimant. At that hearing, Counsel for both parties made oral submissions to the Court.

8 Before dealing with the Submissions of Counsel, I find it prudent to set out some of the facts with respect to the application before the Court as are found in the above — mentioned Affidavits:-

• (a) Mrs. Rodgers is a shareholder of the Defendant company. In her First Affidavit, she deposes that, by the Will of her late husband Calvin Rodgers, the latter left his entire share holding (comprising 100%) to four persons, namely his daughter Mrs. Pigott in the amount of 48%; his Accountant (Mr. Avondale Thomas) in the amountof 2%; his long time employee and close friend, (Noel Walling) in the amount of 2%. The balance of the shares, being 48%, was left to Mrs. Rodgers.

• (b) In her First Affidavit, Mrs. Rodgers alleges that the relief which she seeks is an interim relief namely, "to restrain the Defendant from acting upon or otherwise giving effect to its decision dated 15^th November whereby her position as general manager and executive director of the Defendant is terminated with effect from the 30^th November 2012 on grounds of redundancy. The termination letter is hereby reproduced:-

"21 November 2012

Dear Dr. Rodgers

For the record, I acknowledge receipt of your memo of November 15, 2012 and confirm that the contents were considered at the Board Meeting of the same date.

…………

You will note that the other Directors expressed that they have the same concerns as were expressed in my proposal and, as such, the decision to reorganize by removing the position of Executive Director and creating the position of General Manager was approved by the majority of the Board.

………………………………………………….

……………………………………………………

As the Board has approved the creation of the position of the General Manager, I will be working on the detailed job description so that the position may be advertised by year. I look forward to your contribution to the discussions on this issue.

Since the position of Executive Director is removed by reorganization as of the 30^th November 2012, you are entitled to severance and notice for your years of service.

Yours truly,

Yorie O. Pigott

Chairman

Airport Services (Antigua) Ltd."

(c) The above letter was copied to "Mr. Avondale Thomas — Director" and "Mr. Noel Walling — Director." (both of whom, like Mrs. Pigott, are beneficial shareholders — see (a) above.)

(d) In paragraph 5 of her First Affidavit, Mrs. Rodgers states that "from 2007 I was employed to perform the functions of the General Manager and was given the title Executive Director."

(e) In paragraph 12 of her First Affidavit, Mrs. Rodgers states that at the time of her employment with the Defendant, she was not given a written statement of her employment conditions as all employers are obliged to do by reason of the Antigua and Barbuda Labour Code. Following the death of her husband "and the subsequent divisions of ownership of the Defendant", she sought to have the said statement issued; she sent a letter, written by her Attorney, requesting a statement of her employment conditions.

(f) She remained in office performing her "functions as the General Manager of the Company."

(g) In his Affidavit in Reply, Mr. Walling states that "….I deny that the Claimant was the General Manager of the Defendant Company as asserted by the Claimant in paragraph 5 of her Affidavit. To my certain knowledge, the Claimant was designated as the Executive Director of the Defendant company and as far as I am aware it is in the application filed in these proceedings that, for the first time, the Claimant has asserted that she is the General Manager of the Defendant company."

(h) In paragraph 11 of his Affidavit, Mr. Walling states that, to the best of his knowledge, "no terms of employment were ever agreed between the Claimant andthe Defendant company." In paragraph 30 of the said Affidavit, Mr. Walling adds that the Claimant provided him with the Memorandum at page 9 of her Exhibit "VR1", in which she set out a job description for herself as Executive Director.

9 In her Statement of Claim, Mrs. Rodgers pleads that:-

• (a) On the 22^nd May 2012, following the death of her husband, the Executor of her husband's estate installed a new Board of Directors consisting of Mrs. Yorie Pigott, the Claimant's stepdaughter; Mr. Walling, the Executor, Mr. Avondale Thomas, who is also the Auditor of the Defendant company.

• (b) She contends that the Board is unlawful for the following reasons:-

  • i) The appointment by the Executor of the Estate of the members of the Board was done at a time when he was not registered as the shareholder of the company.

  • ii) The presence of Avondale Thomas as a director whilst being the auditor is contrary to Article 49 of the Articles of incorporation of the Defendant company.

• (c) Upon the appointment of the Board of Directors they unlawfully sought to redefine the Claimant's employment position and set about to purport to unlawfully remove the Claimant from her employment position.

• (d) The Board of Directors without lawful authority have sought to terminate the employment position of the Claimant by way of letter dated 21^st November 2012 effective 30^th November 2012.

• (e) The stated reason for termination is redundancy; there is to the knowledge of the Defendant no redundancy of the Claimant's employment position within the Defendant company.

SUBMISSIONS OF COUNSEL FOR THE CLAIMANT

10 Learned Counsel for the Claimant, Mr. Hugh Marshall Jr. submitted that the legal issues are as follows:-

• 1) The legality of the Constitution of the Board of the Defendant Company; he contends that this can be broken down into two parts, namely: — (a) Whether persons appointing the Board of Directors are entitled to do so in that they are not the registered shareholders, and (b) Whether Avondale Thomas in his persona as the Auditor of the Company can rightfully be a member of the Board of Directors of the Company.

• 2) The second issue is: — Whether the termination of the Claimant is lawful; Counsel contends that this can be broken down into: — (a) There is no redundancy or suggestion of redundancy, and (b) There is no loss of confidence in the employee in the discharge of her functions.

• 3) The third issue is that the purported termination by the Defendant is being carried out in contravention of the obligations of Avondale Thomas in his position as the Executor of the Estate given that the shares are beneficially in the Estate or legally in the...