Massey Stores (Barbados) Ltd (formerly Super Center Ltd) v Merton Forde

• Jurisdiction: Barbados
• Judge: ‘Haynes, C.J.’
• Judgment Date: 25 April 2025
• Neutral Citation: BB 2025 CA 5
• Court: Court of Appeal (Barbados)
• Year: 2025
• Docket Number: Magisterial Appeal 0016 of 2021

Massey Stores (Barbados) Limited (formerly Super Center Limited)

and

Merton Forde

Haynes, C.J.; Cornelius, J.A.; Charles-Clarke, J.A.

Magisterial Appeal 0016 of 2021

Court of Appeal

Appearances:

Michael J. Koeiman of Messrs Dentons Delaney for the Appellant.

M. Tariq Khan in association with Mechelle Forde for the Respondent.

DECISION

‘Haynes, C.J.’

1 On 21 July 2023, this Court, (differently constituted and by majority decision) upheld the decision, delivered on the 20 January 2021, of the learned Magistrate for District A, that the summary dismissal of the Respondent was not justified and consequently, the Respondent was wrongfully dismissed. The Court also ordered the “Respondent to have 2/3 of his costs to be agreed or taxed”.

2 In furtherance of its order, this Court directed counsel for the parties to agree on the sum to be awarded to the respondent under section 45(1) of the Severance Payments Act, Cap 355A (hereinafter referred to as “The Act”) such sum representing damages for wrongful dismissal and permitted the parties, in default of agreement, to return to the Court for an assessment of damages.

3 Regrettably, the parties failed to agree the quantum of damages payable, interest thereon as well as costs and on 26 September 2024, this Court heard submissions on the assessment of damages, interest to be awarded thereon, if any, and costs payable by the appellant to the respondent.

4 The facts, having been set out in the previous decision of this court, are not in dispute. However, for the purposes of this judgment the material facts are that the appellant, on the 12th day of December 2012, summarily dismissed the respondent, who on the date of his dismissal had accrued in excess of thirty-three (33) years of continuous employment. Further the respondent's monthly salary was at all material times in excess of the maximum insurable earnings as provided for by the relevant statutory instruments made pursuant to section 19A of the National Insurance and Social Security Act, Cap 47 (hereinafter referred to as “The National Insurance Act”). This in essence is the root of the disagreement between counsel.

THE ISSUE IN THIS MATTER

5 It is clear that the parties are not of the same mind with respect to the method to be used in the calculation of the sum to be awarded pursuant to section 45(1) of the Act where the employee's monthly salary for the 104 week period immediately preceding his dismissal was at all material times greater than the maximum insurable earnings on which contributions are payable to the National Insurance Scheme as it was then known.

SUBMISSIONS

APPELLANT'S SUBMISSIONS

6 In summary, with respect to the issue of calculation of the respondent's severance payment, the appellant submits that

• (i) the calculation of the respondent's total basic pay for the 104 week period reckoning backwards from the relevant date should be based on the maximum insurable earnings as prescribed by the various orders made under section 19A of the National Insurance Act for the applicable years instead of the respondent's actual monthly wage which, as previously stated, was greater than that of the prescribed maximum insurable earnings;

• (ii) the calculation of total basic pay should take into account:

  • (a) the maximum insurable earnings of the respondent prescribed by S.I. no. 9 of 2010 for the relevant period in December 2010 i.e. the 13th day of December 2010 until 31st day of December 2010,

  • (b) The maximum insurable earnings prescribed by S.I. no. 149 of 2010 for the period commencing 1st day of January 2011 until 31st day of December 2011, and

  • (c) the maximum insurable earnings prescribed by S.I. no. 152 of 2011 for the period commencing 1st day of January 2012 until 12th day of December 2012, and

• (iii) The aggregate of the maximum insurable earnings for the aforesaid periods should then be divided by 104 to ascertain the week's basic pay of the respondent.

7 Using this approach the appellant calculated the respondent's week's basic pay in the sum of $953.25 and assessed the damages for wrongful dismissal in the sum of $95,801.63 as follows:-

“12) The last 104 weeks of the Respondent's employment were 50 weeks in 2012; 52 weeks in 2011 and 2 weeks in 2010.

13) The maximum insurable earnings in Barbados in these years, were:

2012 — $965.00

2011 — $944.00

2010 — $900.00

14) The maximum insurable earnings for the last 104 weeks of the Respondent's employment are therefore:

$965.00 x 50 weeks = $48,250.00

$944.00 x 52 weeks = $49,088.00

$900 x 2 weeks = $1,800.00

Total: $99,138.00

Week's basic pay: $99,138.00 — 104 = $953.25

Thus, it is submitted that the Respondent's award under section 45(1) of the Severance Payments Act should be calculated as follows:

2.5 weeks' basic pay for each year up to 10 years: 2.5 x 10 x $953.25 = $23,831.25

3.0 weeks' basic pay for each year by which employment exceeds 10 years but does not exceed 20 years: 3.0 x 10 x $953.25 = $28,597.50

3.5 weeks' basic pay for each year by which employment exceeds 20 years but does not exceed 33 years: 3.5 x 13 x $953.25 = $43,372.88

Total: $95,801.63”

8 The appellant, however, failed to address the court, either in its written submissions or orally, on whether the Court should make any order awarding (i) interest on the damages for wrongful dismissal, and (ii) costs of the hearing before this court.

RESPONDENT'S SUBMISSIONS

9 The respondent, on the other hand, made the following submissions:

• i) It is incorrect to apply the maximum insurable earnings which relate to the three different periods over the 104 weeks as identified by the appellant. That the maximum insurable earnings to be applied is that of the maximum insurable earnings for the year 2012. That to do otherwise would be to apply “retroactive insurance ceiling rates”.

• ii) The 104 weeks denominator is simply limited to the calculation of week's basic pay and nothing more. “It is not a means by which to retroactively apply insurable earnings ceiling rates pertinent to those years of calculating the basic pay (by extension this interpretation suggests that one might as well apply each corresponding insurable earnings ceiling to each year of employment). That would be unnecessary, punitive and illogical”.

• iii) In the alternative to (ii) above, the calculation could be based on the maximum insurable earnings applicable to the year 2023 if the “applicable interest rate” was not agreed and

• iv) that the basis for this alternative argument (iii above) was that the plaint before the learned Magistrate sought “further or other relief”. The respondent further submitted that the fact that the Court of Appeal having delivered its judgment on 21st July 2023 arguably qualifies the respondent to be subject to the insurable earnings ceiling rate for the year 2023. The respondent supports this submission on the ground that the respondent's wrongful dismissal caused him to suffer a loss of earnings he ought not to have.

• v) In the further alternative, that in the event the court did not accept that the maximum insurable earnings for the year 2023 should be applied, the court ought to exercise its power pursuant to section 52 of the Supreme Court of Judicature Act, Cap 117A to award interest on the damages payable.

• vi) With respect to the costs of the hearing before this court, that these should be quantified, on the basis that this hearing for assessment of damages is not a substantive appeal and results from an application before the Court. Consequently, CPR Part 65 Rule 11, which refers to assessed costs of procedural applications should apply.

10 It is to be noted that both counsel made submissions with respect to the costs payable on appeal. These submissions fly in the face of the previous order of the Court that the appellant was to have two-thirds (2/3) of its costs to be taxed or agreed. This Court will not entertain submissions in respect of costs previously ordered.

THE STATUTORY FRAMEWORK IN SUMMARY

11 Section 45(1) of The Act provides as follows:

Notwithstanding any rule of law to the contrary, where, in an action brought by an employee against an employer for breach of their contract of employment, the employee claims damages for wrongful dismissal, the court shall, if

• (a) it finds that the employee was wrongfully dismissed; and

• (b) it is satisfied that, had the employee been dismissed by reason of redundancy or natural disaster, the employer would be liable to pay him a severance payment,

assess those damages at an amount not less than such severance payment.

12 By section 45(1) therefore, damages for wrongful dismissal are to be assessed at an amount not less than the severance payment that the wrongfully dismissed employee would have received had the employee been dismissed by reason of redundancy or natural disaster.

13 The formula to be applied in the calculation of the severance payment is set out in section 3 Part II of The Act which provides that where an employee has been dismissed because of redundancy or natural disaster the employer is liable to pay to the employee a sum calculated in accordance with Part I of the First Schedule of The Act.

14 The first three paragraphs of Part I of the First Schedule provide the formula for assessment as follows:

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