Hermes Marquetta Butcher-Rayside v Rayside Construction Ltd
| Jurisdiction | Barbados |
| Judge | Madam Justice Sonia L. Richards |
| Judgment Date | 03 November 2020 |
| Neutral Citation | BB 2020 HC 16 |
| Court | High Court (Barbados) |
| Docket Number | CV NO. 1289 of 2006 |
| Date | 03 November 2020 |
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. 1289 of 2006
Sir Elliott Mottley Q.C., Ms. M. Shepherd and Ms. J. Kelly, Attorneys-at-Law of E.D. Mottley & Co. for the Claimant.
Mr. Leslie Haynes Q.C., Mr. P. McWatt and Ms. S. Sealy, Attorneys-at-Law for the Defendant.
This is a claim for damages for constructive dismissal.
The Claimant was employed by the Defendant company, (“RCL”), in January 1999 as an assistant to the Accountant. She was married to the then majority shareholder, Chairman of the Board and Managing Director of RCL, Mr. Keith Rayside Snr.
The Claimant was continuously employed by RCL, and held a number of positions until 30 July 2004, when the Board confirmed her appointment as CEO to RCL. The Claimant also served as a Director of RCL.
By an agreement dated 20 October 2006, CLICO Holdings (Barbados) Limited, (“CLICO”), purchased a majority shareholding in RCL. Prior to this acquisition, CLICO conducted a due diligence investigation of RCL. This exercise was undertaken by Natalie John as CLICO's Internal Auditor. After the acquisition Mrs. John became the Vice President, Finance at RCL.
On 05 December 2005, the Claimant received the following letter from Terrence Thornhill, President of CLICO
“Dear Mrs. Rayside:
Since assuming the management and conduct of the affairs of [RCL] we have notified you that your present employment as CEO of RCL cannot continue.
In the spirit of continued cooperation between the principal shareholders, we have suggested and are prepared to offer you another position in RCL. To this end we requested you to let us have your thoughts with respect to your future role with RCL. Your response has been to leave it up to us to determine the matter.
To assist us in arriving at a determination, we have requested your file from the HR department of RCL and we were informed that such a file could not be found. Accordingly, we are without the assistance of several relevant matters including your qualifications and experience. We have noted however your assertions that you assumed the role of CEO by default, that you commenced your employment with RCL in the accounts department and that that is where you would feel comfortable.
In the circumstances, we offer you the position of Senior Accounts Officer with responsibility for monitoring the accounts payable and receivables of the company. In this role, you will be reporting directly to the Financial Controller of the company and will receive a monthly salary of $5,000 per month.
Arrangements are in train for a CEO to be appointed by January 1 st 2006. We therefore look forward to discussing with you our present offer in the next few days so as to ensure a smooth transition from January 1 st. We have taken the liberty of copying this letter to the other substantial shareholder and we look forward to an amicable resolution”.
The letter was copied to the Claimant's husband.
The Claimant subsequently spoke with CLICO's Chairman, Mr. Leroy Parris, about the contents of the letter. A meeting was arranged for 12 December 2005. Prior to the meeting, the Claimant received correspondence dated 08 December 2005 from Mr. Parris. She was informed that:
“With effect from November 21, 2005 [CLICO] has acquired a controlling interest in [RCL].
The change in the ownership of [RCL] is not anticipated to result in any changes to your current conditions of work. Your years of service with the company will continue uninterrupted and your employment will continue on terms and conditions no less favourable than previously obtained.
We look forward to working together to ensure the continuity and success of [RCL]”.
The Claimant met with Messrs. Parris and Thornhill on the evening of 12 December 2005. Her evidence of what transpired at the meeting and on the following day was never challenged by any of the witnesses for RCL. And neither Parris nor Thornhill provided a witness statement or any oral evidence to contradict the Claimant's version of events.
The Claimant recalled that:
“50. At the afternoon meeting with Mr. Parris I pointed out to them that I had received a very offensive letter from them. I stated that I had a contract with [RCL]. I told them to give me my money I was owed under the contract and let me go. Mr. Parris said that if that was the way I felt I should go right away. I said I have things to complete and then I would go when I was finished.
51. Mr. Terrence Thornhill returned to my office with me. He watched me until 6.00 p.m. Whilst I was finalizing my departure Mr. Parris rang Mr. Thornhill and asked him was I serious. I said Mr. Parris should speak to me directly. I took Mr. Thornhill's phone and spoke to Mr. Parris in the presence of Mr. Thornhill. I explained to Mr. Thornhill the contents of my filing cabinet. I told him they could call me if there were any problems. I gave him my cell number. He rang the cell number in my presence to see if I had given him the correct number. Mr. Thornhill told me to hurry up as he had to take his daughter to the movies. I told him I had my personal effects which included a Dell computer, refrigerator etc. which I needed to remove. He told me that would be no problem come back and get them when I was ready. I locked the door to my office and gave Mr. Thornhill the key. I got in my car and left. Mr. Thornhill left behind me.
52. I was advised by my lawyer that I should obtain a formal letter of dismissal. I returned to RCL the following morning. I asked for my office keys to gain access to my office. [Ms. John] said she was not going to give them to me. Mr. Rayside called her. She refused to go to him. Mr. Parris then came to RCL and cursed me telling me to get out of his so and so place. He cursed me in the presence of Mr. Rayside and Mr. Hallam Nicholls. Mr. Parris refused to give me a dismissal letter or a paper to enable me to get unemployment benefit. At this point I left the premises of RCL and put the matter in the hands of my Attorney s-at-Law”.
Subsequent to the Claimant's departure from RCL, her lawyer wrote to RCL's manager on 14 December, 2005 as follows:
“The letter dated December 5, 2005 from [CLICO] has been handed to us with instructions to reply.
By that letter our client was informed that her employment with [RCL] as CEO could not continue. Further, the letter stated that arrangements were in train to have a CEO appointed by January 1, 2006. We are further instructed that, on December 12, 2005 our client was summarily dismissed by Mr. Ray Parris, acting on behalf of [CLICO] the majority shareholder.
We have advised our client that this conduct on behalf of [RCL] and [CLICO] amounts to constructive dismissal of our client.
Pursuant to a contract dated August 1, 2004 between [RCL] and our client, she was employed as the [CEO] for a period of five years.
In the circumstances our client is claiming damages for wrongful dismissal.
We should be grateful if you would let us know whether you are prepared to settle this matter amicably. If we do not hear from you by December 31, 2005 we are instructed to institute an action claiming damages for wrongful dismissal”.
The Writ of Summons was filed on 17 July 2006. The Claimant alleges that her constructive dismissal occurred on or about 09 December 2005, without just cause. Damages are claimed for the unexpired term of her contract of employment, from 01 December 2005 to 31 July 2009, and comprise:
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(1) basic monthly salary;
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(2) monthly entertainment allowance;
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(3) monthly travel allowances;
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(4) the benefit of a fully loaded executive company vehicle fully maintained and insured plus 60 litres of petrol per week; and
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(5) an annual performance bonus. Costs and interest are included in the claim.
RCL filed its defence of 02 November 2006, and admitted that the Claimant was promoted to CEO on 01 August 2004. The existence of a written contract of employment was denied. RCL alleged that the Claimant's dismissal was justified because she had authorized a number of payments by RCL that undermined RCL's finances. It pleaded that in total a sum of $518,560.39 should set off against anything the Court found to be due to the Claimant. A counterclaim was also entered for the said sum with interest and costs.
In her reply the Claimant denied any misuse of RCL's monies, or that RCL had just cause to dismiss her.
The issues to be determined by the Court are as follows:
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(1) was there a written employment contract executed by the parties;
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(2) did RCL have just cause to dismiss the Claimant;
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(3) was the Claimant constructively dismissed; and
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(4) was the Claimant obliged to mitigate her loss?
The Board of RCL approved the appointment of the Claimant as CEO on 30 July, 2004. The appointment took effect from 01 August 2004. This is not disputed. The Court also accepts that the parties entered into a written agreement called the Executive Service Agreement. The Agreement is dated 01 August 2004, and is duly executed.
The essential terms of the Agreement refer to the contract period (Clause 1); salary and other benefits (Clause 3 and Schedule 2); bonus (Clause 4); and termination (Clause 7). The initial period of the Agreement was for five years, and would automatically extend for a further five years unless terminated for just cause. It was stipulated that the Claimant's employment could be terminated “for just cause only”.
Canadian courts have defined just cause as:
“…conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the...
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