Brian Lashley v Firstcaribbean International Bank Ltd
| Jurisdiction | Barbados |
| Judge | Madam Justice Sonia L. Richards |
| Judgment Date | 14 May 2020 |
| Neutral Citation | BB 2020 HC 11 |
| Date | 14 May 2020 |
| Docket Number | CV NO. 1006 of 2012 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL JURISDICTION
Dr. The Hon. Madam Justice Sonia L. Richards, Judge of the High Court.
CV NO. 1006 of 2012
Mr. Brian Weekes, Attorney-at-Law for the Claimant.
Mr. Kevin Boyce, Mr. Omari Drakes and Mr. Matthew Gooding, Attorneys-at-Lavv of Messrs. Clarke Gittens Farmer for the Defendant.
This is a claim for damages for wrongful dismissal.
The Claimant was initially employed by the Defendant Bank on 05 January 2004 as a Software Support Manager. The terms of his employment were contained in correspondence bearing the same date. One of the express terms of the contract of employment provided for the termination of that contract.
The parties agree that clause 19 (a) of the employment contract permitted the Claimant to be terminated in the following circumstances:
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(1) by the Bank with severance pay, with advance notice, or with pay in lieu of notice in accordance with applicable statutory provisions;
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(2) by the Claimant in accordance with applicable statutory provisions;
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(3) by mutual agreement; or
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(4) at anytime whether during or following the Claimant's probationary period by the Bank without severance pay, advance notice or salary in lieu thereof for good and sufficient cause or an urgent reason.
By correspondence dated 29 April 2008, the Claimant was promoted to the position of Head of Technology Solutions, Channels and Cards. This correspondence set out his remuneration, and also stipulated that all the terms and conditions of his employment, except those referring to his probationary period, remained unchanged.
The Claimant was invited to a meeting at the Bank on 04 May 2009. At that meeting he was issued with a letter dated 29 April 2009 that terminated his services with the Bank. The letter informed him inter alia:
“We advise that as a result of the restructuring of the Technology Department, your position has been eliminated. In this regard, your employment with [the Bank] will end effective May 4, 2009. The purpose of this letter is to provide you with written notice that your employment with [the Bank] will conclude on that date.
……
Upon your returning a signed copy of this letter signifying your acceptance of these terms, and providing a duly executed original of a Deed of Final Settlement and Release, [the Bank] will provide you with a severance payment in the amount of BBD$55,034.00 and a lump sum payment in lieu of notice in the amount of BBD$40,279.00. These payments will be combined and shall be paid at the same time, after May 4, 2009, and within two weeks of receiving the appropriately executed [documents]. These payments are inclusive and in full satisfaction and discharge, of any and all amounts that you may be entitled to receive in respect of your employment, whether under the provisions of your employment contract, or under any applicable statute or law”.
After the meeting, the Claimant was escorted to collect his personal belongings. His access to the Bank was removed and he was prevented from reentering the Bank. The Claimant did not execute the documents, but he received a total sum of $95,313.00, which represented a severance payment and payment in lieu of notice. The Bank paid his car allowance for three additional months; permitted his benefits under the medical scheme to continue for the month of May 2009; and continued to offer preferred interest rates on his loans for another six months.
The Claimant filed his wrongful dismissal claim on 15 June 2012. He claimed damages for wrongful dismissal, interest and costs. His particulars of damage included pay in lieu of eighteen months notice, and the payment of a bonus for 2009.
The Bank filed its amended defence on 29 October 2013. The gravamen of the defence is that the Claimant was not wrongfully dismissed. Rather, he was entitled to a severance payment because he was dismissed by reason of redundancy. The redundancy occurred as a result of restructuring by the Bank. The Claimant received three months pay in lieu of notice together with additional benefits. According to the defence, the Claimant was fully compensated.
The parties agreed that the issue to be determined by the Court is whether or not the Claimant received his full legal entitlement when his contract of employment was terminated by the Bank. This Court has a different perspective. In the Court's view there are two main issues to be resolved, namely:
There is a minor issue relating to the Claimant's eligibility for a bonus payment.
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(1) on the facts of this case, was the Claimant wrongfully dismissed, or was he dismissed because of redundancy; and
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(2) in either scenario, what was an adequate period of notice?
At paragraph 10 of its amended defence the Bank pleaded that:
“The Claimant's employment with the [Bank] was terminated on May 4, 2009 by way of a letter dated April 29, 2009 as a result of redundancy due to the restructuring of the [Bank]. The [Bank] provided the Claimant with severance pay and 3 months payment in lieu of notice and additional benefits in accordance with the terms of the Claimant's contract of employment and the Laws of Barbados. The Claimant was also provided with a Termination of Services/Lay-off Certificate dated May 25, 2009 which stated that the reason for termination was “Redundancy”.”
It is evident from paragraph 10 that the Bank admitted that the Claimant was dismissed. The Bank also purported to dismiss the Claimant in accordance with clause 19 (a) of the contract of employment dated 05 January 2004. (See para. [3] (1) supra). The contract was not determined by the Claimant, or by mutual agreement, or for good and sufficient cause, or for urgent reason. (See paras.[3] (2), (3) and (4) supra).
According to clause 19 (a) of the employment contract, any severance payment or payment in lieu of notice was to be calculated “in accordance with applicable statutory provisions”. The applicable statutory provisions are contained in the Severance Payments Act, Cap.355A, (“The Act”). The Act describes itself as an act to provide for the making by employers of severance payments to employees who cease to be employed in circumstances amounting to redundancy and for related matters. (Long title to Act). The circumstances indicative of a redundancy are delineated in section 3 (3) of the Act.
Section 3(3) provides in part that:
“For the purposes of this Act, an employee who is dismissed shall be deemed
(a) to be dismissed because of redundancy if his dismissal is wholly or mainly attributable to
(i) -..
(ii) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish;”.
The parties are agreed that any question of redundancy, in this case, is to be determined within the context of section 3(3) (a) (ii) of the Act.
Section 3 (3) (a) (ii) has regional and extra regional parallels. For example, the Employment Act 2001, Bahamas, s.72 (b); the Employment Protection (Consolidation) Act 1978, England, s.91 (2) (b); the Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965, s.11 (2) (b); and the Redundancy Payments Act 1965, England, s.1(2)(b). As these legislative precedents are “closely aligned” or “identical” to the Barbados section, this Court will be referring to cases decided on similar legislation. This is in keeping with what the Caribbean Court of Justice, (“the CCJ”), referred to as the legitimacy of placing reliance on the general principles emerging from other jurisdictions. (Per Mr. Justice Anderson, JCCJ, in Chefette Restaurants Limited v. Orlando Harris [2020] CCJ 6 (AJ) (BB) at para. [84], referring to observations by the Privy Council in Blackburn v. LIAT (1974) Ltd [2020] UKPC 9). Speaking for a united bench, Justice Anderson confirmed that:
“We are of the view that cases that provide judicial interpretations of general concepts and principles in employment legislation can be helpful, whatever their source, provided that the interpretations are mined from provisions which are similar, and similarly situated, to local provisions being considered”. (At para. [85] of Chefette judgment).
Our Court of Appeal has endorsed the test to be applied to section 3 (3)(a)(ii) as adumbrated by Lord Irvine of Lairg LC. In Murray et al v. Foyle Meats Ltd [1999] 3 All ER 769, Lord Irvine was considering the Northern Ireland statute, (supra at para. [14]), and he opined that:
“……the language of the [the section] is in my view simplicity itself. It asks two questions of fact. The first is whether one or other of various states of economic affairs exist. In this case the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs. This is a question of causation”. (P.771; see Trimart Incorporated v. Cox, Civ. Ap. No.1 of 2014, decision dated 20 September 2016, at paras. [33] – [34] of judgment; see also Neely v. Credit Suisse Trust Limited, Bah. Sup. Ct. COM/LAB 15 of 2005 (28 Jan. 2009); and Safeway Stores Pic v. Burrell [1997] ICR 532).
This Court is also guided by the observations of Sir Marston Gibson CJ that:
“What is therefore clear is that there is no shorthand or automatic answer to the question whether a redundancy has occurred upon the dismissal of an employee in the course of an alleged “reorganization” or “restructuring”. In every...
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