Moore v Turtle Beach Resort Ltd
| Jurisdiction | Barbados |
| Judge | Williams, J.A. |
| Judgment Date | 30 April 2010 |
| Neutral Citation | BB 2010 CA 11 |
| Docket Number | Mag. Appeal No. 1 of 2010 |
| Court | Court of Appeal (Barbados) |
| Date | 30 April 2010 |
Court of Appeal
Williams, J.A.; Moore, J.A.; Mason, J.A.
Mag. Appeal No. 1 of 2010
Mr. Roger Forde Q.C. for the appellant
Ms. Faye Finisterre for the respondent.
Damages - Wrongful dismissal — Magistrate finding lawful termination — Appeal — Term of contract — Contract providing for notice of intention of termination — Termination not within the law — Appellant entitled to damages. Under s.45 of Severance Payments Act — Appeal allowed.
On 18 December 2009, the Magistrate for District ‘E’, Mr. Ian Weekes, dismissed Mr. Michael Moore's action for wrongful dismissal in which he claimed damages against Turtle Beach Resort Limited. The Magistrate held, in effect, that the employer had lawfully terminated its contract with the employee in accordance with the terms of the contract. The employee challenges the decision of the Magistrate.
On 4 March 1989, the employee commenced working with Elegant Hotels (Barbados) Limited and was from 1 November 2001 assigned to Turtle Beach Resort in the position of Executive Chef pursuant to a letter of appointment dated 30 October 2001.
The letter of appointment stated Mr. Moore's monthly remuneration, performance bonus, reporting responsibility, hours of work, holiday entitlement, health insurance, food and beverage allowances, and laundry and sick leave entitlements. However, the letter contained no provision for termination of the contract. It did, however, contain a provision for giving notice of intention to terminate the contract, headed “Notice Period” as follows:
“4. NOTICE PERIOD
You are required to give two (2) months' notice of your intention to terminate your contract of employment with the company. Similarly, Elegant Hotels (Barbados) Limited will give you two (2) months' notice of our intention to terminate your contract of employment.” (Emphasis added.)
This provision was unusual in that it made no reference to the terms for actual termination of the contract or for payment in lieu of notice.
On 3 July 2007, by letter of that date, Mr. Charles Maynard, General Manager of Turtle Beach informed Mr. Moore that his contract of employment was terminated effective the same date. The letter further stated, “[i]n accordance with your contract you will be paid two months' notice, any outstanding vacation pay and salary for July 2007”. Mr. Moore was therefore summarily dismissed on 3 July 2007. Turtle Beach purported to lawfully terminate his contract in terms of the letter of appointment by paying him the sum of $26,300.05, representing two months' salary and his salary for July, and $7,174.11 representing his outstanding vacation pay.
On 3 November 2008, over a year after his dismissal, Mr. Moore filed a claim for damages for wrongful dismissal. The plaintiff pleaded that it was an implied term of the agreement between the parties that the defendant would not dismiss him without just cause and/or without giving him reasonable notice (para. 4). The plaintiff in his amended statement of claim claimed damages and interest.
The defendant did not file a defence but its position was (and is) that the plaintiff was dismissed in accordance with the terms of the contract and that in any event two months' pay in lieu of notice was reasonable and in compliance with the standard in the industry for a chef to be paid on termination of his contract.
Mr. Roger Forde Q.C. submitted to the Magistrate and this Court that the “notice period” did not provide for payment in lieu of notice and therefore the contract could not be lawfully terminated by payment of two months' salary. He contended that in any event payment of two months' salary was unreasonable compensation for an employee of 18 years' standing who held the position of executive chef. He further contended that the Magistrate failed to have regard to section 45 of the Severance Payments Act, Cap. 355A (the Act), which makes statutory provision for the minimum payment of damages for wrongful dismissal.
The Magistrate's reasons for his decision can be summarised in his own words as follows:
“The case has come down to a single point. The issue of notice…In the instant case the contract was determinable by either party and the agreed time was two months…the damages to be paid for the breach of the determinable contract is what was agreed between the parties who accepted the terms for a determination of the contract…it should be clear that the law in determinable contracts makes it lawful for the defendant in this matter to pay the agreed sum…further this Court indeed would have no power to rewrite the...
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