Maria Caines Claimant v [1] The Labour Commissioner [2] Attorney General of St. Christopher and Nevis Defendants [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeThomas J
Judgment Date22 Feb 2013
Judgment citation (vLex)[2013] ECSC J0222-3
Docket NumberCLAIM NO. SKBHCV2011/0177
[2013] ECSC J0222-3

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SKBHCV2011/0177

Between:
Maria Caines
Claimant
and
[1] The Labour Commissioner
[2] The Attorney General of St. Christopher and Nevis
Defendants
1

Thomas J (Ag) This matter is before the court for the assessment of damages payable to the claimant with respect to her action filed against the defendants on 19th July, 2011. This ended with an order of this court for the assessment of damages consequent on the non-appearance of the defendants on the first hearing of the fixed date claim.

Thomas J
2

The background facts are adequately set out in the submissions filed on behalf of the claimant and which the court adopts and reproduces:

  • 1. "In or around March 2010 the Claimant submitted a claim to the First Defendant for severance pay pursuant to the Protection of Employment Act Cap. 18.27.

  • 2. On the 10th day of March 2011 (14 months after application was made) and after receiving no response from the First Defendant, the Claimant made an application for mandamus for the First Defendant to make a decision on the Claimant's severance pay application. The application was set to be heard on 3rd June 2011. On the day before the scheduled hearing of the application, i.e. on the 2nd day of June 2011, the First Defendant made a decision on the Claimant's application for severance pay as contained in/evidenced by the First Defendant's letter to the Claimant's Solicitor. The First Defendant's decision was that the Claimant had been employed with the Four Seasons Resort Estate(s) (Limited) in a contract for the provision of services and accordingly was not eligible for severance pay. No reasons were given for his decision.

  • 3. The Claimant through her Solicitors by letter dated 9th June 2011 to the First Defendant was asked to reconsider his position and to inform the Claimant's Solicitor by 17th June 2011. The First Defendant never responded to this letter.

  • 4. The Claimant applied for and was granted leave to apply for judicial review on 28th June 2011. On 18th July 2011 the Claimant made an application by fixed date claim for a number of orders. inter alia, an order of certiorari to quash the decision of the First Defendant as contained in his letter of 2nd June 2011. This application for judicial review was supported by an affidavit of the Claimant also filed on 18th July 2011.

  • 5. No defence was filed to the Claimant's claim for judicial review.

  • 6. On the 215t October 2011. the matter came on for first hearing before His Lordship Justice Errol Thomas. The First Defendant was not present and no explanation was offered for his non-appearance before the Court. The Court granted the Claimant's order as prayed. The First Defendant's decision was quashed and the matter was remitted to the First Defendant for his reconsideration".

3

It is important also to reproduce the relief sought by the claimant in her statement of claim:

  • 1. "An order of certiorari to remove into this Honourable Court and to quash the decision of the First-named Defendant the Labour Commissioner. contained in/evidenced by a letter from the First-named Defendant to the 2nd Claimant's Solicitor dated June 2011 whereby the First-named Defendant determined that the Claimant had been employed with the Four Seasons Resort Estate(s) (Limited) in a contract for the provision of services and accordingly was not eligible for severance pay. This decision of the First-named Defendant was in response to the Claimant's Claim for severance payment, submitted to the First-named Defendant in March 2010 consequent upon the termination of the Claimant's employment from Four Seasons Resort Estates Limited.

  • 2. An Order that consequent upon the Order of Certiorari that the matter be remitted to the First-named Defendant and that the First-namedDefendant be ordered to reconsider the Claimant's application for severance pay in accordance with the findings of the Court.

  • 3. Damages including exemplary damages.

  • 4. Such other orders and relief as the Court deems just in the circumstances.

  • 5. That the costs of and occasioned by this be paid by the Defendants".

ISSUE

The issue for determination is the quantum of damages, including exemplary damages that should be awarded to the Claimant with respect to the actions of the First-named Defendant

ISSUE
The Law
4

Part 56 of theCivil Procedure Rule, 2000 provide for the remedies available under an application for judicial review. And Rule 56.8(2) provides that:

"In particular the Court may, on a claim for judicial review or for relief under the Constitution award

  • a) damages;

  • b) restitution; or

  • c) an order for return of property to the claimant of the

    • i. claimant has included in the claim form a claim for any such remedy out of any matter to which the claim for an administrative order relates; or

    • ii. facts set out in the claimant's affidavit or statement of case justify the granting of such remedy or relief, and

    • iii. court is satisfied that, at the time of the application was made the claimant could have issued aclaim for such remedy".

Does the claimant fall within Rule 56.8(2)?

Submissions
5

On behalf of the claimant the relevant submissions are as follows:

"10. In the case at bar, the claimant has included in her fixed date claim form a claim for damages including exemplary damages as an additional remedy in relation to the conduct of the First Defendant.

11. The First Defendant is the person authorized under the Protection of Employment Act Cap. 18.27 ('The Act') to make a determination as to the rights of an applicant to severance payments based on the criteria set out in the statute. An importantcase is based on the fact that the First Defendant acted in bad faith and that his decision to deny the Claimant severance pay, despite the weight of the evidence to the contrary was arbitrary and unlawful. The Act does not provide an express remedy for breach of duty by the First Defendant. However, section 34 of the Act provides a remedy to an aggrieved party to enforce his or her rights under statute. The aforesaid section provides that an employee may recover by civil proceedings in a court of competent jurisdiction. The notice of payment and severance payment to which he is entitled under the Act. Our submission is that the claimant has a recognized cause of action for breach of statutory duty and/or misfeasance in public office by the First Defendant. Se: Southem Development Limited v Bird and other HCVAP2006/020A Attorney General of Antigua and Barbuda per Thomas JA (Ag) at paragraph 29–32. It cannot be doubted that in case where a Claimant can prove on a balance of probabilities that the Labour Commissioner has acted improperly to deny what is a valid and incontestable claim for severance payment that this constitutes misfeasance in public office. Therefore this is a case where an award of damage would be appropriate".

6

For the Defendant the submissions are in these terms"

"10. It is the Defendant's contention that the Claimant has failed to produce any evidence showing that the actions of the 1sl Defendant cause had loss and damage or that there was any breach of statutory duty. Therefore, the Defendants submit that the Claimant does not satisfy the conditions for the award of damages and so is not entitled to the same.

11. However, if this Honourable Court finds that the Claimant is entitled to an award of damages, the Defendants submit that the award should be compensatory only".

The Claimant's Pleadings
7

In the Fixed Date Claim filed on 18th July 2011, the claimant's case is that her solicitor was in receipt of a letter from the First Defendant dated 2nd June 2011 whereby the First Defendant determined that the claimant had been employed with Four Seasons Resort Estate(s) (Limited) in acontract for the provision of services. (i.e as an independent contractor and as such was not entitled to severance pay). According to the claimant, this decision of the first-named defendant was in response to the claimant's claim for severance payment submitted to the first-named defendant in March 2010 consequent upon the termination of the Claimant's employment from the Four Seasons Resorts Estates Limited.

8

In the claimant's statement of claim the pleadings in support of her case that she was ernployed under a contract of service rather than a contract for services are set out. However, given the requirements of Part 56.8(2) of the Rules it becomes necessary to detail the pleadings set out at paragraph 4of the statement of claim"

"4. It is the Claimant's contention that the First-named Defendant in coming to the aforesaid decision fell into the following errors:

  • (i) The First-named Defendant failed to take into account relevant matters/considerations and/or to give them due weight. These matters incontrovertibly demonstrate that the Claimant was employed with the Four Seasons Resort Estates Limited (hereinafter 'FSRE') under a contract of service and was at time of her termination, an employee or servant and not an independent contractor. These relevant matters are:

    • a. The initial position advertised by FSRE was that of Sales Assistant (Temporary). This was not, nor was it advertised as being, an independent contractor position. It was advertised as an employee (i.e. servant) position. This was the position that the Claimant applied for and which was addressed in her letter of application. Both FSRE and the Claimant viewed the Claimant's employment to be a contractor of service.

    • b. The actual terms of employment are referable to a contract of service. The revised terms of the employment letter between the FRSE and the Claimant dated May 27, 1999 again clearly demonstrates that both FSRE and the Claimant considered and intended the relationship to be that of a normal employer-employee/servant, and not that of employer and independent contractor.

    • c. The revised terms of...

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