Nigel Russell v Mustique Company Ltd
| Jurisdiction | Caribbean States |
| Judge | ‘Henry, J.’ |
| Judgment Date | 02 November 2024 |
| Judgment citation (vLex) | [2024] ECSC J0209-4 |
| Year | 2024 |
| Court | Eastern Caribbean Supreme Court |
| Docket Number | SVGHCV2017/0120 |
SVGHCV2017/0120
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Mrs. Kay Bacchus-Baptiste of counsel for the claimant.
Mrs. Mandella Peters with her Mrs. Cheryl Bailey of counsel for the defendant.
This is a claim 1 by Mr. Nigel Russell against the Mustique Company Limited (MCL) for damages for breach of contract and constructive dismissal. Mr. Russel claimed the total sum of $945,099.79 as special damages and an unspecified amount for general damages. He also sought interest and costs. He alleged that after working with MCL on a series of contracts between June 1 st 1999 and 2 nd March 2014 that he was terminated by MCL without due cause. He claimed that he was entitled to receive payments for conducting OHS training, overtime, outstanding salary, vacation
pay, travelling allowance and balance on gratuityMCL denied those allegations. It maintained that by letter dated 27 th February 2015 Mr. Russell's contract was terminated consensually between the parties with effect from March 2 nd 2015. It contended that the elements of constructive dismissal and the alleged breach of contract have not been particularized in the claim, that in any event the termination was lawful and further that Mr. Russell was paid his lawful termination benefits inclusive of severance.
For the reasons set out in this judgment I have found that MCL is not liable for breach of contract, wrongful dismissal or constructive dismissal as alleged by Mr. Russell.
The issues are:-
1. Whether the Mustique Company Limited constructively dismissed Mr. Nigel Russell?
2. Whether the Mustique Company Limited is liable to Mr. Nigel Russell for breach of his contract of employment?
3. Whether Mr. Nigel Russell's claim for unfair dismissal is justiciable in the High Court?
4. Whether MCL is liable to Mr. Russell for wrongful dismissal or breach of the Mustique Company Limited Act?
5. To what remedies if any, is Mr. Russell entitled.
Mr. Russell began working with the Mustique Company Limited on June 1 st 1999 as the Quartermaster in its Security Department. He testified that his first period of employment was based on an oral contract which was not formalized in writing until September 1 st 2002. Thereafter, he executed a series of other contracts of employment with the final such contract being signed on September 14 th 2007 2. He accepted that he remained in the Mustique Company's employ until March 2 nd 2015 when his employment was terminated by letter dated February 27 th 2015.
Mr. Russell claimed that prior to receiving the termination letter he had worked with MCL on the island of Mustique for several years. Under cross-examination he admitted that he signed two contracts of employment, one dated 6 th April 2006 and another dated September 14 th 2007 3. Mr. Russell accepted that the contract dated September 14 th 2007 replaced any former agreements and arrangements for employment with the MCL. It was tendered into evidence as part of exhibit ‘SH1’ by Mr. Simon Humphrey, former Chief Security Officer with MCL, now retired.
The contract contained the terms and conditions of employment that applied to Mr. Russell as MCL's Quartermaster of Grand Bay Workers Accommodation Area. It gave the date of commencement of employment as June 1 st 1999 and the date of reissue as September 14 2007. It identified the Chief Security Officer/Company Senior Manager as the officer to whom Mr. Russell would be reporting.
Other relevant terms were set out as follows:
‘3 DURATION OF CONTRACT
The Contract of Employment shall be for a fixed period with effect from the commencement date of employment and shall continue until the discontinuation of employment date. It will be automatically renewed every year, unless terminated by either the employee or the Company with either party giving the other one (1) month's notice, such notice to be given in writing.
4 PRIOR AGREEMENTS
This Contract replaces and supersedes all former and existing agreements or arrangements for the employment of the Employee by the Company (if any) all of which shall be deemed to have been cancelled with effect from the date of commencement of this agreement.
…
15 RETIREMENT AGE
Retirement age is normally 60 years of age. Retirement at an earlier or later age may be allowed at the Company's discretion.’
Mr. Russell testified that he is in full agreement with all of the terms in that contract. He accepted that it replaces all former employment agreements and arrangements between him and MCL. He claimed that his employment was terminated without due cause. He explained that towards the end of 2013, about 2 1/2 years before his retirement was due to occur on his 60 th birthday he requested a transfer to another department. He stated that Mr. Humphrey who was the head of his department had threatened him and asked him to carry out duties that he considered may compromise him. Consequently, he was of the view that the working environment on Mustique Island had become stultifying and unbearable and this led to him asking for a transfer.
He stated that the request was approved and he was told to report for duty to one Mr. Dale Cain at the Kingstown office on mainland Saint Vincent in October 2014. However, when he got there he realized that Mr. Cain was not expecting him and no office furniture was provided for him. He said that Mr. Cain found a space in his office which could accommodate a desk and chair for his use. However, while the other staff were setting up the space, Mr. Joachim ordered them to stop because the MCL would have to rent other space for him. He stated that he found space wherever he could and at one point shared space in the office of another staff member. However, one day Mr. Joachim, Mr. Humphrey and one Mr. Pritchard told him that he could not use that space on a permanent basis and thereafter he could not perform his duties as normal.
Mr. Russell explained that he telephoned Mr. Humphrey to apprise him of the situation and they thereafter held further telephone conversations about his position with MCL. During one of those conversations Mr. Humphrey broached the subject of him taking early retirement and thereafter opening a consultancy with MCL for two years to do occupational health and safety regulation (‘OHS’) training of MCL's employees. He indicated to Mr. Humphrey that he had no issue with providing OHS training as a consultant but he did not wish to take early retirement. He also told Mr. Humphrey that if the company could not resolve the issue of office space, he would be prepared to consider other options proposed by MCL.
He testified that he received an email on 22 nd October 2014 from Mr. Humphrey to the effect that MCL would like him to concentrate for the time being on health and safety training, risk assessment and SOPs for the staff and this would require that he travel to Mustique once or twice weekly for training purposes and to assess the work environment. Further, that after Christmas 2014 they will begin discussions about his possible retirement from MCL.
Mr. Russell claimed that by email dated 23 rd October 2014, he agreed to coordinate the safety training and asked Mr. Humphrey to confirm that he had permission to work from home; that his new retirement date may be December 2014 and that they would finalize the OHS consultancy in January 2015. In a return email that same day, Mr. Humphrey granted permission for him to work from home and indicated that they would re-visit the retirement discussions in January 2015. Mr. Russell noted that Mr. Humphrey insinuated that there may have been something wrong with his (Russell's) health although this was not the case. He denied being ill and stated that he was fatigued from doing the same job for 14 years.
By email dated 7 th January 2015 Mr. Russell asked that his employment status with MCL be clarified. Mr. Humphrey responded that he was looking to resolve his case in February 2015. He suggested to Mr. Russell that he should retire and MCL would pay him gratuity, based on severance calculations. Mr. Russell testified that he telephoned Mr. Humphrey and told him that he had never requested early retirement and that the idea was proposed by MCL.
Mr. Humphrey replied by email dated January 9 th 2015 outlining certain steps that would lead to the end of Mr. Russell's employment with MCL. They were:
1. Confirm the gratuity amount in writing and that it would be paid to Mr. Russell.
2. Write a letter to the effect that he was retiring.
3. Confirm those arrangements with Mr. Pritchard.
Mr. Russell stated that Mr. Humphrey told him that MCL did not want to dismiss him but since dismissal was the only way he could legally get severance, it was best that ‘he retire/resign and MCL agree in writing beforehand that he will receive a gratuity that is exactly the same as the severance payment as a thank you for years of service to the company’. He testified that he telephoned Mr. Humphrey and told him that he was not willing to resign or retire from MCL as suggested. He stated that it became clear after that conversation that MCL had decided to terminate him and was not willing to provide office space for him to work from or commit to a two year OHS consultancy with him. He therefore, without the benefit of legal advice accepted the arrangements for severance from MCL.
Mr. Humphrey sent Mr. Russell another email on 27 th February 2015 advising that all arrangements to formally ‘let him go’ from MCL ‘with a full severance package’ had been completed. Mr. Russell stated that by letter dated March 2 nd 2015 from Mr. Humphrey, MCL terminated him without cause and with immediate effect. He...
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