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EASTERN CARIBBEAN SUPREME COURT
TERRITORY OF THE VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
BVIHCV: 2009/0277
BETWEEN:
DECA PENN
Claimant
and
SCOTIABANK (BRITISH VIRGIN ISLANDS) LIMITED
Defendant
Appearances:
Dr J S Archibald of J.S. Archibald & Co for the Claimant
Mr Terrance Neale and Sonjah Smith of McWTodman & Co for the Defendant

2013: January 28th
2013: February 28th

JUDGMENT
[1] Ellis J: This is a very straightforward case of wrongful dismissal. Neither the Claimant’s pleadings
nor her witness statement discloses that she takes any issue with underlying basis for the
termination of her contract of employment. Rather, the Claimant alleges that her dismissal was
wrongful because the Defendant dismissed her with insufficient notice under her contract of
employment. In the premises she claims damages for breach of contract, interest and prescribed
costs.
[2] The evidence in this matter discloses that the Claimant entered into an employment agreement
with the Defendant on 3rd June 1997. By letter dated 25th November 2008, the Defendant
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terminated the Claimant’s employment with immediate effect. She was paid three months salary
totalling $14,799.81 in lieu of notice.
[3] The Claimant’s contract of employment was for an indefinite term and made no provision for
termination. The Claimant contends that in such circumstances she is entitled at common law, to a
reasonable period of notice on termination. Based on all of the circumstances of the case she
contends that a reasonable period of notice would have been twelve months. She therefore
asserts that she was legally and contractually entitled to twelve months notice and claims the sums
of $53, 499.79 representing the salary which she would have earned over a period of 9 months
(the difference between the salary she should have received over 12 months and that which she
actually received in lieu of the three month notice period) plus vacation pay for 20 days.
[4] The Defendant does not dispute that the Claimant’s employment agreement had no specific
provision dealing with notice upon termination or payment in lieu such notice. However, the
Defendant asserts that under section C9 (3) (c) of the British Virgin Islands Labour Code Cap 293
of the Revised Laws of the Virgin Islands (the Code), the Claimant was legally entitled to no more
than one month’s notice. The Defendant contends that the Claimant was in fact paid three months
salary in lieu of notice which was in excess of her statutory entitlement. It contends that this
was done as an act of generosity and in recognition of her length of service.
[5] Section C9 of the Code provides as follows;
(1) An employer may without advance notice terminate the employment of any person who
had engaged in misconduct related to his work within the limitations of C58 (1) or (2).
(2) With respect to a person who has been engaged for a specified term of employment of
less than one week’s duration, the employer need give no further notice of his intention to
terminate said employment at the end of the specified term unless the terms of his
employment specify otherwise.
(3) In all other cases the employer must give advance notice to the affected employee of an
intention to terminate that person’s employment, as follows –
(a) With respect to an employee within his probation period, an employer
must give at least 24 hours advance notice of his intention to terminate
said employee’s employment;
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(b) With respect to all other employees, the period of said advance notice
shall be at least equivalent to the interval of time between the affected
employee’s pay days;
(c) In no case need the period of said advance notice exceed 30 days unless
an employment contract calls for a longer notice period.
(4) Having given due advance notice to terminate employment, an employer may terminate
the employment prior to the effective date of termination under the notice provided that he
pay the employee a sum equivalent to that he would have paid if the employee had worked
throughout the period.
[6] The Respondent contends that the section C9 (3) (c) of the Code prescribes the maximum rather
than the minimum periods of notice to which the Claimant would be entitled upon termination.
Counsel for the Respondent therefore submitted that in circumstances where the Claimant
admittedly received three months salary in lieu of notice, which far exceeded the maximum
prescribed statutory entitlement of one month; she cannot maintain that she was wrongfully
dismissed. He urged the Court to conclude that the Defendant did not act in breach the
employment agreement.
[7] In support of this contention, Counsel for the Respondent referred the Court to the case of Ray A.
George v British Virgin Islands Port Authority1 where Barrow JA in considering section C9 (3)
of the British Virgin Islands Labour Code stated as follows:
“That provision settles the matter to my mind it specifically permits an
employment contract to provide for termination by giving advance notice not
exceeding 30 days. It mentions nothing about and imposes no limitation on
reasons for termination. Limitations on reasons for termination arise only in the
context of unfair dismissal.”
[8] The Court is not satisfied that this authority provides the assistance which Counsel for the
Respondent posits. At that point in the judgment the Court of Appeal was clearly concerned with
the central issue of whether an employer was obliged to provide reasons for termination and not
whether the section prescribed statutory maximum notice periods. In fact later on in the
judgment, the Court of Appeal was definitive in confirming the strength of the notice of
termination provisions under the Code. After referencing section C9 (employer’s notice of
1 British Virgin Islands Civil Appeal No. 28 of 2006; judgment delivered July 2nd 2007
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termination) and C11 (employee’s notice of termination) of the Code, Barrow JA made the following
statement;
“The two sets of provisions concerning notice of intended termination, it seems to
me, are the minimum employment standards established by the Code relevant to
termination. Therefore, the termination clause in this case, which provided for a
greater notice period than the Code required, was a perfectly valid provision of the
contract.” 2
[9] It is clear that this statement contradicts the position advanced by Counsel for the Defendant.
The Defendant’s defence is in any event trenchantly opposed by the Claimant who
contends that this claim seeks recognition and enforcement of her common law rather than
statutory rights. Counsel for the Claimant submitted that under common law, where a contract of
employment makes no provision for termination, the law will imply a term that an employee is
entitled to reasonable notice of termination. He submitted that in such circumstances what
constitutes reasonable notice is to be decided by the Court. The Court is satisfied that this general
statement of the law cannot be faulted.3
[10] Counsel for the Defendant however contended that the Labour Code must in any event be taken
as superseding the common law in all circumstances where the concept for reasonable notice
becomes relevant. He submitted that the Code provides the legal benchmark unless there is a
contractual obligation to give more.
[11] The Court must therefore consider the statutory legal framework relevant to termination of
employment within the Territory, vis-à-vis the common law position. How these two legal systems
interact is in the Court’s view critical to determining the principal issue which arises in this case.
Employment – The Relationship between Statute and Common Law
[12] In the British Virgin Islands the employment contract is governed both by statute and common law.
At the time of the filing of this action the operating statutory regime regulating employment in the
2 Ray A. George v British Virgin Islands Port Authority at paragraph14
3 Fuller v Revere Jamaica Alumina Ltd (1980) 31 WIR 304 at 309; Rouse v Mendoza (1967) 12 WIR 1
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Territory included the Labour Code Cap 293 of the Revised Laws of the Virgin Islands (the Code)4
as well as certain constitutional provisions5.
[13] Section A5 of the Code set out the general application the Code as follows:
(1) To the extent that provisions of this Code purport to apply to employers, they shall apply to
employers operating or doing business in the Virgin Islands including the Government as the
employer of its non-established employees, but they shall not bind the Government as the
employer of its other employees.
(2) To the extent that the provisions of this Code apply to employees, they shall apply to all
employees of employers operating or doing business in the Virgin Islands, including the nonestablished
employees of the Government; but they shall not apply to
(a) established employees of the Government;
(b) persons in the naval, military or air forces of the Government
(c) the Police Force
(d) persons holding status of diplomatic agents or
(e) persons employed by the United Nations or its specialized agencies.
[14] The Code takes into account applicable international standards, in prescribing minimum conditions
of employment covering the hiring of employees, wage and hours of work, employment
discrimination, leave of absence, individual rights, benefits and termination. Section A7 of the Code
therefore provides that;
Nothing in the Code shall be construed as prohibiting an employer, either
unilaterally by individual contract with an employee or with employees, or by
collective agreement with employees’ representatives, from establishing working
conditions more advantageous to employees than those minimum standards
which are set forth in the Code.
[15] It follows that all employers operating or doing business in the British Virgin Islands have an
obligation to adhere to and maintain the minimum standards which are set forth in the Code. This
would include any minimum standards prescribed in regards to termination of employment – in
particular the notice period. Consequently, while it is open to the parties to contractually agree to a
notice period that exceeds the prescribed minimum, where there is a termination provision in an
4On 4 October 2010 the new Labour Code 2010 came into force.
5 Section 60 (1) (d) and Chapter 2 and 7 of the Virgin Islands Constitutional Order 2007
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employment agreement which purports to provide less than the statutory minimum it will have no
legal effect. This is reinforced in section C7 (i) of the Labour Code which provides that:
“It shall be lawful for an employer and employee to enter into an individual contract of
employment, either written or oral covering terms of employment, but-
(i) any provision thereof which establishes conditions which fall below the
minimum employment standards established by the Code shall be null and
void;”
[16] Notwithstanding these statutory provisions, there is a plethora of judicial authorities which make it
clear that an employee’s entitlement to notice on termination may be derived both from statute
and the common law. It is now settled that in employment contracts of an indefinite term (that is,
not “fixed-term” contracts or contracts which otherwise provide for termination), the right to
reasonable notice is an implied term. Failing to provide reasonable notice constitutes wrongful
dismissal at common law and could make an employer vulnerable to a wrongful dismissal claim
and liable for damages.
[17] For an employer, determining what constitutes “reasonable” notice is therefore crucial in order to
avoid possible litigation by employees. This is particularly so in light of the fact that courts have
often determined that an employee is entitled to “reasonable notice” at common law which may
exceed the prescribed statutory entitlement. In so ruling the Courts have acknowledged that an
employee’s statutory entitlement co-exists with his rights under the common law.
[18] In Burrill and Another v Schrader and Another6 the Court of Appeal definitely clarified the
relationship between the common law and statute thusly
“A statute should not be construed so as to abolish or restrict a common law right of
remedy in the absence of unequivocal language or necessary implication from the
statutory context indicating a legislative intention to abolish or restrict that right or remedy.”
[19] This decision has been applied in the case Ray A. George v British Virgin Islands Port
Authority. At page 15 of that judgment, Barrow JA noted the following
6 (1995) 50 WIR 193
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“In Burrell v Schneider Sir Vincent Floissac CJ explained that as a result of the provisions
in the Labour Code there were now two regimes governing employment relationships and
an employee was entitled to different rights under them. He said:
“At the time of the enactment of the Labour Code, an employee had a common-law right
not to be wrongfully dismissed. The Labour Code did not abolish that right. The Labour
Code merely supplemented that right by a statutory right not to be dismissed. …
“The common law right is based on contract and the statutory right is based on social
policy. The provisions of sections C57 and C58 of the Labour Code ensure that the two
rights harmoniously co-exist.”
[20] It follows that in the wake of its enactment, the Code did not abolish an employee’s right to pursue
a claim for wrongful dismissal under the common law.
[21] Based on the foregoing, it would therefore be incorrect to assume that the statutorily prescribed
minimums are the only obligations which an employer has when contemplating termination of an
employee. Satisfying the statutory prescribed periods, does not relieve an employer of his
common law obligation to provide “reasonable notice”. Indeed, in the absence of a contractual
stipulation to the contrary, courts have routinely implied an obligation on the employer to provide
far more generous notice periods than are prescribed under the statute.7
[22] In the premises and in the absence of an express contractual stipulation dealing with termination of
the Claimant’s contract of employment, the Court must therefore now seek to determine what
would have been a reasonable period of notice under the common law.
EMPLOYER’S NOTICE OF TERMINATION – REASONABLE NOTICE
[23] At common law when an employee is hired for an indefinite period and there is no express
contractual provision for termination on notice, the employee is entitled to reasonable notice of
termination. The question as to what is a reasonable period of notice is one of fact, depending on
all the circumstances of the case and the nature of the employment.8
[24] In determining what constitutes reasonable notice of termination, the courts have generally
considered all of the circumstances of the case including the nature and character of employment
including seniority and stature, salary and benefits; the employee’s age, the employee’s
7 Anthony Edwards v Nautool Machine Limited per Georges J at page 20;Clarke v American Life Insurance Co. (2002) 62 WIR 1
8 McGuire v Wardair Canada Ltd. 71 WWR 705; Waithe v Caribbean International Airways (1988) 39 WIR 61
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experience, training and qualifications, the length of service, and the availability of similar
employment.9 What then are the circumstances of this case?
The Claimant’s Evidence
[25] The Claimant gave evidence on her own behalf and called no other witnesses. In her witness
statement she stated that she entered into a written agreement with the Defendant in June 1997.
She was initially employed as a commercial credit account officer earning a gross salary of
US$25,000.00 per year. She also received standard employee benefits which included 12 days
vacation per year.
[26] During the course of her employment she received salary increases and was eventually
promoted to the position of Accounts Manager in the Commercial Credit Department in September
2005. In that capacity her duties included;
i. Granting, renewing or declining credit requests within specified lending
limits and making recommendations to higher lending authorities for
loans over these limits.
ii. Keeping abreast of changes in accounting practices, government and tax
regulations and other factors as they relate to financial statement
preparation.
iii. Designing and negotiating profitable and effective banking proposals with
customers and prospects.
iv. Analyzing accounts and negotiating detailed account compensation
packages with customers to maximize profitability and correct any
revenue deficiencies.
[27] At the date of termination (25th November 2008), the Claimant was earning an annual salary of
US$64,815.00 and was entitled to 20 days vacation per year. The Claimant also stated that she
obtained Bachelor of Arts in Accounting and Associate of Arts in Business Management.
[28] During the trial the Claimant was examined by her Counsel. She confirmed that she had worked at
the Defendant Bank for 11 years. In amplifying her witness statement she indicated that she did not
9 Mendez v the bank of Nova Scotia [1990-1991] 4 CCLR 205;Margaret Penn v BVI Ports Authority British Virgin Islands BVIHCV
Claim No.2000/109
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agree with the basis upon which she was terminated. She testified that the Defendant did not follow
the Bank’s human resource management operating procedures prior to terminating her
employment.
[29] Counsel for the Defendant strenuously objected to this evidence on the basis that it was not
relevant to the issues which are to be determined by the Court. He noted that the Claimant’s
pleadings do not establish that she takes issue with the reasons for her termination and her
witness statement also corroborates this position.
[30] In response, Counsel for the Defendant confirmed that the evidence was important only because
the Claimant wished to place on record her opposition to the matters raised in paragraph 6 of the
Defendant’s defence filed on 28th August 2009 and in the witness statement of the defence
witness, Joycelyn Murraine.
[31] Under cross examination the Claimant testified that following her dismissal, she secured
employment with Deloitte in May, 2009. She maintained that job for a period of 3 months at a
monthly salary of $3195.00.
The Defendant’s Evidence
[32] The Defendant’s Managing Director, Ms. Joycelyn Murraine gave evidence on behalf of the
Defendant. In her witness statement she confirmed the Claimant evidence as to her designation
remuneration and length of service at the time of her termination. Ms. Murraine also stated that in
her capacity as Managing Director of the Defendant she decided to terminate the Claimant’s
employment by giving her three months salary in lieu of notice on the ground that she had failed to
perform her duties satisfactorily despite several warnings
[33] The Claimant chose not to cross examine Ms. Murraine during the trial.
Analysis of Evidence / Law
[34] On, the evidence disclosed the Court finds that the Claimant was employed on an indefinite
contract of employment which did not provide for termination by notice or payment in lieu. The
Claimant is therefore entitled to reasonable notice.
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[35] At that date of termination the Claimant had been employed with the Defendant for approximately
11 years. She entered employment at an entry level position but in September 2005 she was
promoted to the position of Accounts Manager in the Commercial Credit Department, a position
which she held until her termination in 2008: a little over 3 years. Her annual salary was
US$64,815.00 and she was entitled to 20 days vacation per year.
[36] The Parties’ evidence as to the Claimant’s duties deviates only slightly. The Court therefore
accepts that her duties as Accounts Manager in the Commercial Credit Department were as
pleaded in her statement of claim. There is no evidence that she headed that department and no
further evidence was provided regarding the seniority and stature of her post.
[37] In his closing submissions Counsel for the Claimant alluded to the fact that the Claimant is
currently employed at the Financial Services Commission in the insurance division and urged
the Court to conclude on that basis that the Claimant is a valuable and competent employee who
deserved more than three months notice of termination. He also contended that Claimant’s
remuneration made her the highest paid person to have initiated a suit for wrongful dismissal within
the Territory. While it is clear that the Claimant’s salary was significant, the Court is
satisfied that this is just one of many factors that must be take into account in considering the
question of reasonable notice. The Court is not satisfied that this factor should be more heavily
weighted in determining reasonable notice.
[38] The Claimant also did not plead or give any evidence as to her age. Further, other than the
bare assertion that she obtained a Bachelor of Arts in Accounting and Associate of Arts in
Business Management, the Claimant provided no documentary evidence in support and gave no
indication as to the date when these qualifications were obtained.
[39] The Claimant also elected not to provide any evidence and made no submissions relative to her
employability or the availability or unavailability of similar employment in the Territory.
Given the Claimant’s cause of action and burden of proof which follows as a consequence, the
Court was generally surprised at the paucity of evidence proffered in support of her claim. If a
claimant is to satisfy this Court that he/she was not given reasonable notice upon termination that
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claimant is obliged to provide the Court with sufficient evidence relevant to the factors which
the Court must consider and which have been well established at common law.
[40] It is one of the fundamental principles of the conduct of litigation that a party seeking to prove an
allegation bears the burden of proof in respect to that fact. In grounding a claim for wrongful
dismissal, it is therefore critical that a claimant’s case be proved by formal evidence and where
necessary, he must condescend to the relevant particulars.
[41] In the case at bar, the Court was left to speculate on aspects of the evidence which should have
been clear and cogent. As a result, this left a vacuum for the Court which would inevitably affect its
findings.
[42] Both counsel however assisted the Court by submitting a number of judicial precedents on
reasonable notice. The Court has carefully considered the case law provided. However, the Court
recognizes that there is no precise formula which emerges or which would lead to a common
result in all cases, since the facts will often vary from one case to another. At best the authorities
provide a useful guide as to what other courts have decided on the facts presented before them.
[43] Ultimately, what would constitute reasonable notice is a question of fact to be determined with
reference to the facts and the surrounding circumstances of each particular case. The Court must
therefore have regard to the particular facts and evidence of the case at bar, taking into account
the factors which it is obliged to consider at common law.
[44] In support of her claim that twelve months notice would have been reasonable in the
circumstances the Claimant relied on the following cases
i. Mendez v Bank of Nova Scotia (1990-1991) – Claimant employed as the Bank’s
Assistant Manager of Operations for three years; Claimant’s position was fourth
from top of the Bank’s organizational chart; – Court found that dismissal would
seriously impact his employability for many years and determined that reasonable
notice would be 9 months.
ii. Jamie Holmes v Peter Island Estates Limited (1997)10 – Claimant employed as
General Manager of the Defendant’s resort for 5 years; Claimant had a significant
10 British Virgin Islands BVIHCV 1996/124 judgment delivered 10th April 1997
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remuneration package which included accommodation, bonuses and allowances –
Court agreed that 5 months notice would be reasonable
iii. Margaret Penn v British Virgin islands Ports Authority (2003) – Claimant
employed as the Deputy Managing Director/ Managing Director Designate of the
Authority for eleven years; Claimant appointed an Managing Director and ex officio
member of the Authority’s board; Claimant a certified public accountant since 1980
– Court found that reasonable notice would be 12 months.
[45] Counsel for the Defendant referred the Court to the following cases:
i. Waithe V Caribbean International Airways Ltd. (1988)11 – Claimant employed
as General Manger of the Defendant Airline for six years; prior to this Claimant
was experienced and very well qualified air traffic controller, deputy airport
manager and senior research officer with the Ministry of Civil Aviation; Claimant
had significant training and qualifications; Claimant unable to find suitable
alternative employment –Court determined that reasonable notice would be 12
months.
ii. Anthony Edwards v Nautool v Machine Limited (1996) – Claimant an
experienced and expert machinist; Court acknowledged that there were limited
employment opportunities in the Territory for Claimant’s skills – Court determined
that reasonable notice would be 3 months.
iii. Rajmangal v BVI Electricity Corporation (2009) – Claimant was highly qualified
engineer with a Masters Degree in Business Administration. He was the head of
his department and had served the Corporation for a period of 16 years and he
remained unemployed for a period of 8 months following his termination – the
Court determined that reasonable notice would be 12 months.
[46] Looking at the cases cited by Counsel for the Claimant, the Court finds her claim for 12 months
notice to be unsupportable.
[47] In the Courts view, the Claimant’s position in the Defendant Bank could not be said to be
comparable with any of the claimants in the cases submitted by the Counsel for the Claimant. In
all of these cases the facts disclose that the claimants were in the highest ranking tieres of the
management structure in their organizations. Their positions would have clearly involved
significant autonomy; organizational responsibility and accountability.
[48] Although the Claimant was eventually promoted from an entry level position to a position of some
responsibility and trust, it is apparent that her responsibilities and duties were more limited in
11 (1987) 39 WIR 61
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nature. There is no indication that she held a position of equivalent stature and dimension as
obtained in the cases referred to by Counsel.
[49] Also of great significance in this case is the fact nature and character of the Claimant’s
employment and the availability of suitable or similar employment having regard to her experience
and qualifications. On the whole, the Claimant did not demonstrate that there was any unique
feature of her position, employment, qualification or experience which would make it difficult for her
to obtain similar employment within the Territory. While she was not a certified accountant, the
Claimant stated that she has accounting qualifications at an undergraduate level combined with at
least 11 years of experience in the banking sector. The Court has no basis upon which to conclude
that she would have any difficulty securing similar employment within a relatively reasonable time
frame following termination.
[50] Again, this contrasts with the case law referred to by Counsel. The facts of these cases disclose
that the claimants either held unique positions which would have made it particularly difficult to
secure similar employment or alternatively, there was evidence that their dismissal would have
impacted their future employability. The Court is not satisfied that either of these factors obtained in
this case.
[51] In much the same way, the Court finds that the judicial authorities relied on by Counsel for the
Defendant (justifying a notice period of three months) are also not entirely comparable. In the case
of in Edwards v Nautool, the Claimant was a skilled machinist who earned an hourly wage of
$8.25 – $9.25 per hour for a 40 hour week. The nature and character of his employment is not
analogous to that of the claimant. There was evidence that he trained other employees and it
was also clear that following termination the claimant in that case remained out of work for 10
months. In those circumstances, the Court was forced to accept that he would have limited
employment opportunities despite his specialized skill.
[52] The Court also considered the following judicial authorities:
i. Rouse v Mendoza12: Claimant was a senior clerk with 24 years’ experience – 3 months
notice held to be reasonable.
12 (1968) 12 WIR 1
14
ii. In Didier v Geest Industries (W.I.) Ltd. (1999) 13: the Claimant held a senior executive
position as Manager of Lands and Agriculture and had worked with the Defendant for 33
years- the Court held that a reasonable period of notice was 9 months.
iii. Saunders v St. Kitts Manufacturing Corporation14: Claimant employed as the
Defendant’s Area Manager with 34 years’ service, at the time of his dismissal the claimant,
was third from the top on the field side of his employment, he had undergone specialized
training, he had national responsibility– Court held that 10 months was reasonable notice.
CONCLUSION
[53] In the final analysis the primary object of notice is to provide the terminated employee with a
reasonable opportunity (given his age, training, qualifications, skills and experience) to seek
alternate suitable employment.15
[54] In the case at bar the Claimant does not contend that her termination affected her employability or
that similar employment was unavailable in the Territory. The Claimant’s evidence (albeit under
cross examination) is that she secured alternative employment at a lower monthly salary of $3195
approximately five to six months after being terminated.
[55] The Claimant’s professed academic qualifications include an accounting degree at an
undergraduate level with an additional associate of arts degree in business management although
it is not clear whether these qualifications were obtained prior to or following her termination. At the
date of her termination, the Claimant was a full time salaried employee who had 11 years of
banking experience in commercial credit. The evidence revealed that during her tenure she rose
through the ranks from an entry level position to that of accounts manager, a position of some
responsibility and trust. The Court is satisfied that her duties were closely defined and her
responsibilities departmentalized.
13 [1999] E.C.L.R. 335
14 St Kitts and Nevis, Civil Appeal No 1 of 1993
15 Bramble v Medis Health and Pharmaceutical Services Inc. [1999] 175 DLR (4d) 385
15
[56] The Court considered the relevant authorities and has taken into account all of the relevant
factors including the duties, responsibilities and skills necessary to the claimant’s post, her
professional experience and qualifications and her length of service and remuneration. On the
facts and evidence of this case, the Court is satisfied that the Claimant’s employment was
terminated with insufficient notice under her contract of employment. The Court finds that an
appropriate notice having regard to all the circumstances of this case would be five months.
Consequent upon this determination and in so far as three months salary has already been paid,
the Claimant is entitled to additional two months salary net any taxes and social security
contributions, the details of which must be settled as between Counsel.
[57] The Court is satisfied that no deduction is warranted in respect of mitigation. Although the Claimant
has a duty to mitigate her loss by demonstrating that she made reasonable efforts to obtain
alternative employment suited to her employment and abilities, the burden of demonstrating that
the employee has not met that duty rests with the Defendant, who must show either that the
Claimant found or by the exercise of proper industry in the search could have procured other
employment of a similar kind. It would need to establish that the Claimant’s failure to take
reasonable steps and that had her job search been active; she would have been expected to have
secured not just a position but a comparable position reasonably suitable to her abilities.
[58] The evidence here is that the Claimant secured alternative employment albeit at a much lower
salary within five to six months following termination or about two months after her notice period
had expired. The Defendant has not shown that the Claimant’s actions in the circumstances were
un reasonable.
Pre-judgment interest
[59] At the commencement of the trial Counsel for the Claimant made an oral application to amend
Claim Form and Statement of claim in order to insert a claim for pre judgment interest. No
Application or affidavit in support having been filed, the Defendant had no notice of the application
and was clearly caught unawares.
[60] The Court considered CPR Part 20.1 and Practice Direction 5 of 2011 including the factors
prescribed and declined to entertain the application.
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[61] Counsel for the Claimant then submitted that the Court had an equitable jurisdiction to consider the
claim for pre judgment interest in the absence of such an amendment and proffered the following
judicial authorities in support: Creque v Penn [2007] 70 WIR 150 – 157; Jamie Holmes v Peter
Island Estates Limited and Norbert Daliewicz and Another v West Indian Development
Company Limited.
[62] The Court referred both Counsel to the case of Ocean Conversion (BVI) Limited v Attorney
General of the Virgin Islands16 and invited written submissions. Having carefully read those
submissions the Court can find no basis to differ from the reasoning and the conclusions drawn by
Bannister J in that case. Further, having reviewed the Court of Appeal judgment in Dominica
Agricultural and Industrial Development Bank v Mavis Williams 17 the Court is satisfied that
the Claimant’s equitable claim for prejudgment interest is not maintainable and must be refused.
[63] In the circumstances and for the reasons outlined above, it is ordered that:
i. Judgment is entered for the Claimant.
ii. The Defendant shall pay the Claimant damages representing two months salary in
lieu of notice net any applicable taxes and social security contributions. The details
of such amounts are to be settled as between Counsel.
iii. The judgment will carry interest from the date of this order until payment.
iv. The Defendants shall pay the Claimant’s prescribed costs on the total amount of
damages awarded in accordance with CPR Part 65.
…………………………………………
Vicki Ann Ellis
High Court Judge
16 British Virgin Islands BVIHCV 2008/192 judgment delivered December 2009
17 Dominica Civil Appeal No. 20 of 2005 judgment delivered 29th January 2007 per Barrow JA paras 60-65