Waithe v Caribbean International Airways Ltd
| Jurisdiction | Barbados |
| Judge | Williams, C.J. |
| Judgment Date | 11 December 1987 |
| Neutral Citation | BB 1987 HC 79 |
| Docket Number | No. 585 of 1987 |
| Court | High Court (Barbados) |
| Date | 11 December 1987 |
High Court
Williams, C.J.
No. 585 of 1987
Mr. H. B. St. John, Q.C. in association with Mr. R. Toppin for the Plaintiff.
Mr. Jack Dear, Q.C. in association with Mr. Clyde Turney, Q.C. for the Defendant.
Tort - Damages — Wrongful dismissal of aviation executive.
The plaintiff Samuel Waithe is an aviation, executive and the defendant Caribbean International Airways Ltd., a company carrying on business as of an air transport carrier of passengers and goods.
The plaintiff was first employed by the defendant on September 1, 1981. He was deputy general manager from that date until August 1, 1982 when he was appointed general manager. On January 30, 1987 the defendant wrote a letter to the plaintiff informing him of its decision to reorganise its operations and to terminate his services as general manager as from January 30, 1987. The defendant invited the plaintiff to make a claim against the defendant for such sums as in his opinion he was entitled to receive on the termination of his employment. The plaintiff did as he was invited to do.
The plaintiff and the defendant are agreed that the plaintiff's salary as general manager was $6,000.00 per month and that he had a telephone allowance of $25.00 per month. The value of the pension contributions due to him on the termination of his employment, $9,107.58, has been paid to him. The parties are also agreed that the plaintiff is entitled to severance pay and have agreed to submit the quantum of his entitlement to the Severance Pay Tribunal for determination. There is no issue on the question of liability and it is agreed that the plaintiff is entitled to be compensated for wrongful dismissal. The quantum is in issue, the areas of disagreement as stated in the Agreed Statement of Issues being as follows:–
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(1) The period of notice;
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(2) The monthly value of the benefits that the plaintiff received, specifically car and travel benefits;
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(3) holidays with pay; and
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(4) overseas duty-travel on weekends and bank holidays.
With respect to the period of notice, the plaintiff claims that he was entitled to be given 12 months notice of dismissal while the defendant contends that he was entitled to no more than 6 months' notice.
The plaintiff was an air traffic controller for 15 years reaching the position of senior air traffic controller. He went overseas on study leave and has a B.Sc. in Aviation Management, a B.S. in Professional Aeronautics specialising in air traffic control and an M.B.A. in Aviation Management. He returned to Barbados in 1980 and acted as Deputy Airport Manager for 3 months. He was transferred to the Research Department of the Ministry of Civil Aviation as senior research officer and worked in that capacity for about 15 months until he joined the defendant company.
The plaintiff gave evidence on July 27. He had been unable to find employment since his summary dismissal. He applied to the International Civil Aviation Organisation which has permanent employees in its Montreal offices and recruits technical experts that are assigned from country to country. He went to Montreal for an interview. He applied too to the International Air Transport Association. He applied also to various airlines without success — Caricargo, B.W.I.A., A.L.M. He tried as an alternative to obtain employment in the hotel sector. Meanwhile he has started a consulting business, Management Aviation and Tourism Consultants, and has done for one organisation, Air Antilles, a preliminary assignment with respect to an aircraft leasing agreement. The plaintiff's evidence therefore is that he has been trying without success to get employment in Barbados or elsewhere.
British Guiana Credit Corporation v. DaSilva [1965] 1 W.L.R. 248 concerned a service contract which the respondent had with the appellant corporation. The respondent was the appellant's general manager and his agreement with the corporation provided that the Corporation may at any time determine his engagement on giving him twelve months' notice in writing or on paying him six months' salary. Lord Donovan delivering the judgment of the Judicial Committee of the Privy Council stated that their Lordships were unable to agree that two years was the right period for which salary and certain other benefits should be regarded as lost. He said at pp. 259, 260.
“The plaintiff was from the beginning of the contract always at the risk that the corporation could have given him reasonable notice to terminate or pay him salary for that period in lieu. Indeed, had they recognised that a binding contract existed, this was the obvious way to terminate it when they decided to appoint Luck. Had the Corporation taken this course, the plaintiff could have recovered no more than the salary plus other benefits under the contract for the period of the notice or a payment in lieu. This therefore represents the measure of his loss (subject as to what is said hereafter as to leave pay). Prima facie a reasonable period of notice would have been six months. It is to be noticed that the plaintiff suggested in the document he submitted to the Corporation with his letter of October 3, 1960, that the Corporation could determine his contract on paying him six months' salary. Their Lordships will, however, leave the determination of the reasonable period for such a notice to the Caribbean Court of Appeal.”
In Bardal v. The Globe & Mail Ltd. 24 Dominion Law Reports 140 Me Ruer C.J.H.C. stated at p. 145 that there can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonable notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. The learned Chief Justice, applying this principle, stated that the plaintiff was a servant who, through a lifetime of training, was qualified to manage the advertising department of a large metropolitan newspaper and, whose training had been in the advertisement department of two large daily newspapers. There were, he continued, few comparable offices available in Canada. The learned Chief Justice came to the conclusion that 1 year's notice would have been reasonable having regard to all the circumstances of the case.
In McGuire v. Wardair Canada Ltd. and Ward 71 WWR 705 the plaintiff was appointed as general manager of Wardair Canada Ltd. with no written service contract and no resolution of the directors appointing him. His services were terminated without notice or compensation. Kirby J, held that there must be imported into the contract of employment a term that the plaintiff was entitled to reasonable notice of termination of his services. He went on to say that what is reasonable notice is always a question of fact and that in that particular case the circumstances leading up to the plaintiff's initial employment and subsequent appointment as general manager, the exceptional nature of his relationship to the company and his competency were all relevant in determining what notice was reasonable. Another factor to be considered was the availability of similar employment, having regard to the employee's experience, training and qualifications. A person in the plaintiff's position was not obligated to accept employment of a different kind or of a lower category and in such cases it was immaterial that the rate of wages offered was the same. The learned trial judge found that the plaintiff was entitled to one year's salary in lieu of...
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