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    Home » Judgments » Court Of Appeal Judgments » St. Kitts Marriott Resort v Deborah Stevens

    THE EASTERN CARIBBEAN SUPREME COURT

    IN THE COURT OF APPEAL

     

    SAINT CHRISTOPHER AND NEVIS

     

    SKBMCVAP2016/0001

     

    BETWEEN:

    ST. KITTS MARRIOTT RESORT

    Appellant

     

    and

     

    DEBORAH STEVENS

    Respondent

     

    Before:

    The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

    The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

    The Hon. Mr. Gerard St. C. Farara, QC Justice of Appeal [Ag.]

    Appearances:

    Mr. Garth L. Wilkin for the Appellant

    Ms. Natasha S. Grey for the Respondent

    —————

    2020: February 14;

    October 30.

    ————–

    Civil Appeal – Employment Law – Wrongful dismissal – Whether magistrate
    erred in finding that appellant wrongfully dismissed respondent – Appellate
    court’s interference with findings of fact by a lower court – Section 5(2)
    of the Protection of Employment Act – Reliance on past conduct to justify
    summary dismissal – Notice of termination – Reasonable notice of
    termination – Whether in circumstances magistrate erred in finding that
    respondent was entitled to reasonable notice of termination – Whether
    common law right of wrongful dismissal abrogated by passage of Protection
    of Employment Act – Whether magistrate erred in assessment of respondent’s
    income – Section 152 of the Magistrate’s Code of Procedure Act – Whether
    magistrate erred in costs order

    The respondent, Ms. Deborah Stevens (“Ms. Stevens”) was employed by the
    appellant, St. Kitts Marriott Resort (“the Hotel”) as a cashier and
    waitress. On 13th June 2014, Ms. Stevens along with her then
    supervisor, Ms. Andrea Weekes (“Ms. Weekes”), and another employee of the
    Hotel, were working at the Café Calypso (“the Café”) located on
    the Hotel’s premises. During the evening Ms. Weekes’ relatives visited the
    Café and she served them with food and beverages and did not charge
    them for the items served. Upon being questioned by a security guard about
    giving away the Hotel’s property Ms. Weekes attempted to pay for the items
    using Ms. Stevens micros card to access the cash register. Ms. Weekes was
    summarily dismissed.

    Subsequently, the Hotel discovered that Ms. Stevens was the cashier whose
    micros card was used to process the purported payment for the food and
    beverages. She was suspended without pay pending further investigation into
    the matter. On 1st July 2014 Ms. Weekes was called to a meeting
    with management. During the meeting she was shown video footage of
    activities in the Café on the evening of the 13th June 2014
    and questioned about her role in Ms. Weekes’ enterprise. She denied any
    involvement and explained how her micros card came to be used by Ms.
    Weekes. At the end of the meeting the Hotel summarily dismissed her. The
    dismissal was confirmed by a letter dated 4th July 2014 setting
    out the reasons for her dismissal.

    Ms. Stevens filed a claim in the Magistrate’s Court against the Hotel
    claiming damages for wrongful dismissal. The main issues that arose for
    consideration before the Magistrate were whether Ms. Stevens was wrongfully
    dismissed, and if so, the amount of compensation to be paid to her. Upon
    hearing and considering the evidence, the Magistrate delivered her reasons
    for decision finding that the Hotel owed a duty to Ms. Stevens to make
    reasonable enquiries and should have investigated the matter properly
    before terminating Ms. Stevens’ employment. Further, that reasonable
    investigations would have shown that the video footage confirmed Ms.
    Stevens’ version of the events and that there was a practice that
    supervisors sometimes used the cashier’s micros card.

    On the issue of damages, the Magistrate decided that Ms. Stevens was not
    limited to the statutory notice period under the Protection of Employment Act (“the Act”). She was entitled
    to reasonable notice at common law, which the Magistrate found to be three
    months’ notice. The Magistrate also accepted Ms. Stevens’ evidence of her
    salary and arrived at an average monthly salary of $2,964.84. She was
    awarded damages of $8,794.40, being three months’ salary, and costs of
    $5,000.00.

    The Hotel, being dissatisfied with Magistrate’s decision, appealed to this
    Court. The issues that arise to be determined are: (1) whether the
    Magistrate erred in finding that the Hotel wrongfully dismissed Ms.
    Stevens; (2) whether in the circumstances of the case the Magistrate erred
    in finding that Ms. Stevens was entitled to reasonable notice of
    termination; (3) whether the Magistrate erred in her assessment of Ms.
    Stevens’ income and the assessment of damages; and (4) whether the
    Magistrate erred in ordering the Hotel to pay costs.

     

    Held
    dismissing the appeal, affirming the orders made by the Magistrate and
    awarding costs of the appeal of $3,333.00 to the respondent, that:
    1. The law on the approach to be taken by an appellate court when reviewing
      the findings of fact by a lower court is well settled. An appellate court
      is generally reluctant to interfere with the findings of fact by a lower
      court since that court had the opportunity of seeing and hearing the
      witnesses give their evidence and to assess their demeanor and credibility.
      To succeed an appellant must satisfy this Court that either the lower court
      erred in principle in considering the evidence, or that the lower court did
      not take proper advantage of having seen and heard the witnesses, or that
      its findings on the evidence were plainly wrong. Applying these principles,
      it is clear that there is no basis for this Court to interfere with the
      Magistrate’s findings that Ms. Stevens was not involved in the activities
      of Ms. Weekes in handing over food and beverages to her relatives, and that
      Ms. Stevens’ conduct in allowing her supervisor to use her micros card was
      not in the circumstances a sufficiently serious breach of the Hotel’s
      policies and procedures to justify summary dismissal. These are
      straightforward findings of fact by the Magistrate that she was entitled to
      make based on her assessment of the evidence before her.

    Watt (or Thomas) v Thomas
    [1947] 1 All ER 582 applied;

    Yates Associates Construction Company Ltd v Blue Sand Investments
    Limited

    BVIHCVAP2012/0028 (delivered 20th April 2016, unreported
    applied; Henry v Mount Gay Distilleries Limited (Barbados)
    [1999] UKPC 39 applied;

    Ingrid Brantford-Hughes v Golden Years Home for the Elderly

    MNILTAP2019/0002 (delivered 26th May 2020, unreported) applied.

    1. Section 5(2) of the Act provides that where an employer is relying on
      past conduct to justify summary dismissal the conduct must have occurred
      within six months of the dismissal and the employee must have been warned
      of the consequences of repeating the misconduct. The alleged historical
      misconduct in this case took place well in excess of six months before the
      dismissal and should not be considered in assessing whether the dismissal
      in July 2014 was proper. The historical misconduct should be regarded only
      as background in the context of the reasons for dismissal.

    Section 5(2) of the Protection of Employment Act
    Cap. 18.27, Revised Laws of Saint Christopher and Nevis, 2017;

    Ingrid Brantford-Hughes v Golden Years Home for the Elderly

    MNILTAP2019/0002 (delivered 26th May 2020, unreported) applied.

    1. The Act introduced into the Federation of Saint Christopher and Nevis
      the right for an employer or employee to bring a statutory claim for
      breaches of the Act and related matters. It is a matter of interpretation
      whether the Act abrogated the existing common law right not to be
      wrongfully dismissed. The general rule is that a statute should not be
      construed so as to abolish or restrict a common-law right or remedy in the
      absence of unequivocal language or necessary implication. There is nothing
      in the Act that suggests that the common law action for wrongful dismissal,
      which includes the requirement to give reasonable notice, was abrogated by
      the passage of the Act in 1986, or by the repeal of the proviso to section
      3 of the Act in 2014. The common law action for wrongful dismissal
      continues to exist in Saint Christopher and Nevis. An employee like Ms.
      Stevens who was summarily dismissed therefore retains the right to bring a
      common law action for wrongful dismissal and, if successful, is entitled to
      damages based on reasonable notice of termination. The Magistrate was
      correct in awarding damages to Ms. Stevens calculated by reference to the
      common law principle of reasonable notice. Further, the Magistrate was also
      correct in finding that based on Ms. Stevens’ term of employment with the
      Hotel, her age and the fact that she has not been able to find a job for
      over a year, she was entitled to damages based on three month’s salary.

    Burrill and another v Schrader and another
    (1995) 50 WIR 193 applied; R (Rottman) v Commissioner of Police for the Metropolis
    [2002] UKHL 20 considered; Alicia Sardine-Browne v RBTT Bank SVGHCV2006/0520
    (delivered 13th July 2015, unreported); Section 7 of the Protection of Employment Act Cap. 18.27, Revised Laws of
    Saint Christopher and Nevis, 2017 considered; Section 3 of the Protection of Employment Act Cap. 18.27, Revised Laws of
    Saint Christopher and Nevis, 2017 considered; Section 56 of the Protection of Employment Act Cap. 18.27, Revised Laws of
    Saint Christopher and Nevis, 2017 considered; Section 35 of the Protection of Employment Act No. 20 of 2003, Laws of Saint
    Vincent and the Grenadines considered.

    1. It was open to the Hotel, which would have had the complete records of
      Ms. Stevens’ employment, to adduce evidence to refute Ms. Stevens’
      evidence. However, this was not done. Taking this into
      account the Court finds that the Magistrate did not err in accepting Ms.
      Stevens’ evidence about her earnings and the Magistrate should not be
      criticised for accepting the evidence that Ms. Stevens made $2,964.80 per
      month.
    2. The Magistrate has a discretion under section 152 of the Magistrate’s Code of Procedure Act to award reasonable
      costs up to $10,000.00. The Magistrate exercised her discretion properly by
      awarding costs in the amount that she did to the successful party. This
      appears to be a reasonable amount for a heavily contested trial in the
      lower court and there is no basis for this Court to interfere with the
      exercise of the Magistrate’s discretion.

    Section 152 of the Magistrate’s Code of Procedure Act Cap.
    3.17, Revised Laws of Saint Christopher and Nevis, 2009 applied.

     

     

    JUDGMENT

    [1] WEBSTER JA [AG.]: This is an appeal by St. Kitts Marriott Resort (“the appellant” or
    “the Hotel”) against the judgment of the learned magistrate, Ms. Josephine
    Mallalieu-Webbe (“the Magistrate”) determining that the Hotel had
    wrongfully dismissed the respondent, Ms. Deborah Stevens (“the respondent” or “Ms.
    Stevens”), and awarding her $8,816.90 in damages and costs.

     

     

    Background


    [2] Ms. Stevens was employed by the Hotel as a cashier and waitress

    for 9 years and 6 months since 2004.
    On 13th June 2014, Ms. Stevens along with her then supervisor,
    Ms. Andrea Weekes (“Ms. Weekes”), and another employee of the Hotel, were
    working at the Café Calypso (“the Café”) located on the Hotel’s
    premises. On that evening, Ms. Weekes’ relatives visited the Café and
    while there she served them with food and beverages. As Ms. Weekes’
    relatives were leaving the Hotel, a security guard stopped them in the
    parking lot and directed them to return the Café because there was a
    query about their bill. This was because Ms. Weekes was suspected of giving
    her relatives items from the Cafe. When asked what method of payment was
    used for the items, the relatives stated that they paid by cash. However,
    by this time, the Café had stopped processing cash transactions. The
    security guard then went to Ms. Weekes and requested a receipt for the said
    items. He observed Ms. Weekes swiping a micros card into the cash register.
    A receipt was produced which showed that the beverages were paid for with
    Ms. Weekes’ credit card. However, the transaction, as evidenced by the time
    stamp on the receipt, was entered after the security guard had intercepted
    the relatives and the items on the receipt did not correspond with the
    beverages in their possession. Following this incident, the Hotel summarily
    dismissed Ms. Weekes for fraud and theft.

    [3] On 28th June 2014, after the Hotel had discovered that Ms.
    Stevens was the cashier whose micros card was used to process the purported
    payment for the food and drinks, she was suspended without pay pending
    further investigation into the matter. Later, she was called to a meeting
    with management on 1st July 2014. During the meeting she was
    shown video footage of activities in the Café on the evening of the 13 th June 2014 and questioned about her role in Ms. Weekes’ giving
    away the Hotel’s property. She denied any involvement and explained how her
    micros card came to be used by Ms. Weekes. At the end of the meeting the
    Hotel summarily dismissed her. The dismissal was confirmed by a letter
    dated 4th July 2014 which reads:

    “Dear Deborah,

    Further to the recent disciplinary meeting that you attended on 2 nd July (sic) I am writing to confirm that you have been
    terminated from your employment at the St. Kitts Marriott Resort for the
    following reasons:

    On Friday, June 13th at approximately 9:15pm you were seen on
    the camera observing your supervisor, Andrea Weekes, serving ice-cream,
    assorted beverages and pizza to guests at the Calypso Cafe counter and not
    accepting payment for these items. The guests were detained in the parking
    lot by Loss Prevention Officers and could not produce a payment receipt for
    any of the items and the further told the Loss Prevention Officer that they
    did not purchase the beverages here at the hotel. You have previously been
    made aware that you are solely responsible for the use of your MICROS card
    and the operations and procedures made with your card.

    Therefore in line with company policy I regrettably have to terminate your
    employment with effect from 2nd July 2014.

    All outstanding days worked, vacation days if any will be paid to you at
    the end of the next payroll cycle in June 2014. Service charge will be paid
    when calculated as it is usually paid a month in arrears.

    Deborah, I sincerely regret that your employment with the company has to
    come to an end and wish you every success in your future endeavors.”

    [4] In January 2015, Ms. Stevens filed a claim in the Magistrate’s Court
    against the Hotel claiming damages for wrongful dismissal.

    [1]

    The main issues that arose for consideration before the Magistrate were
    whether Ms. Stevens was wrongfully dismissed, and if so, the amount of
    compensation to be paid to her.

    Proceedings in the court below

    [5] Ms. Stevens’ position before the Magistrate was that at the material
    time on the night of 13th June 2014, she was very busy clearing
    tables when she gave Ms. Weekes permission to use her micros card. She said
    that she was not involved in any way in Ms. Weekes giving food and drinks
    to her relatives and that the video evidence supported her position. She
    maintained that when the Café was busy it was the usual practice for
    supervisors to assist by using the cashier’s micros cards to process sales.
    Further, her actions that night did not amount to serious misconduct and
    she should not have been summarily dismissed.

    [6] The Hotel opposed the claim and asserted that Ms. Stevens was lawfully
    dismissed for serious misconduct for the reasons set out in the termination
    letter of 2nd July 2014. The Hotel supported its position by
    reference to its policies and procedures contained in two agreements signed
    by Ms. Stevens regarding the use of her micros card, namely: (i) the
    ‘Statement of Acknowledgement of Hotel Policies/LSOP’ signed on 29 th August 2009, by which Ms. Stevens acknowledged that failure
    to observe the LSOP would constitute a violation of the Hotel’s procedures
    and would lead to disciplinary proceedings,

    [2]

    and (ii) the ‘Local Standard Operating Procedure’ signed on 29th
    September 2009, which provided that the employee’s micros card is
    non-transferable and that employees are solely responsible for the use of
    and the transactions made with their cards.

    [3]

    The Hotel submitted that by virtue of its policies and procedures an
    employee should not permit another employee, including supervisors, to use
    his or her micros card. The Hotel argued further that, since Ms. Stevens
    had signed the Hotel’s policy agreements, she was aware of the policy that
    a cashier, like herself, was not allowed, under any circumstance, to permit
    others to use her micros card. The Hotel also denied Ms. Stevens’
    contention that there was an established practice whereby supervisors would
    sometimes use another employee’s micros cards. Rather, the Hotel argued
    that when it was busy supervisors would assist by clearing tables and
    retrieving items out of the refrigerator, or they would write orders by
    hand and later have them entered in the system by the cashier.

    [7] The Magistrate found that the Hotel owed a duty to Ms. Stevens to make
    reasonable enquiries and should have investigated the matter properly
    before terminating Ms. Stevens’ employment. Further, if they had conducted
    a proper enquiry, they would have found that the video footage confirmed
    Ms. Stevens’ version of the events that she was busy, back and forth, and
    not beside Ms. Weekes at the material time. Further, that reasonable
    investigations would have shown that there was a practice that supervisors
    sometimes used the cashier’s micros card. Instead, the Hotel “rushed to
    judgment” and summarily dismissed Ms. Stevens.

    [4]

    [8] On the issue of damages, the Magistrate decided that Ms. Stevens was
    not limited to the statutory notice period under the Protection of Employment Act,

    [5]

    (“the Act”). She was entitled to reasonable notice at common law, which the
    Magistrate found to be three months’ notice having regard to Ms. Stevens’
    age, length of service and the difficulty in securing alternative
    employment. The Magistrate also accepted Ms. Stevens’ evidence that her
    salary averaged $1,000.00 per fortnight during the slow season and
    $2,000.00 per fortnight during the peak season. Ms. Stevens had produced
    one pay slip for $964.80 for one fortnight period. The Magistrate used this
    information to arrive at an average monthly salary of $2,964.84 and awarded
    damages of $8,794.40, being three months’ salary. The Magistrate also
    awarded costs of $5,000.00.

    The Appeal

    [9] The appellant, being dissatisfied with Magistrate’s decision, appealed
    to this Court. The notice of appeal lists six grounds of appeal:

    (i) The Magistrate erred in her finding of fact that the appellant rushed
    to prejudgment of the respondent and did not conduct a proper investigation
    of the respondent’s explanation and her side of the story. This ruling was
    unreasonable, cannot be supported having regard to the evidence and a
    magistrate viewing the circumstances reasonably could not properly have so
    decided.

    (ii) The Magistrate erred in her finding of law as to the required standard
    of investigation required for an employer to summarily dismiss an employee.

    (iii) The Magistrate erred in her findings of law and unreasonably rejected
    legal evidence affecting the merits of the case in relation to the ruling
    that the respondent was wrongfully dismissed.

    (iv) The Magistrate erred in her findings of law and unreasonably rejected
    legal evidence affecting the merits of the case in relation to the ruling
    that the respondent was entitled to three months’ notice of dismissal.

    (v) The Magistrate erred in her finding of fact that the respondent was
    remunerated “$2,000 every two weeks when things were good and when things
    were slow $1000 or $900 at least.” This ruling was unreasonable, cannot be
    supported having regard to the evidence and a magistrate viewing the
    circumstances reasonably could not properly have so decided.

    (vi) The Magistrate erred in her finding of mixed fact and law that the
    respondent was entitled to costs.

    The first three grounds of appeal overlap, and they deal with the main
    issue in the appeal, namely, whether the Magistrate erred in finding that
    the appellant wrongfully dismissed the respondent. The other three issues
    are whether in the circumstances of the case the Magistrate erred in
    finding that the respondent was entitled to reasonable notice of
    termination (ground 4); whether the Magistrate erred in her assessment of
    damages (ground 5); and whether the Magistrate erred in ordering costs to
    the respondent (ground 6).

    Discussion


    Issue 1 (grounds 1, 2 and 3):

    Whether the Magistrate erred in finding that the appellant
    wrongfully dismissed the respondent

     

    [10] Ms. Stevens’ was employed indefinitely and there was no written
    contract of employment. Her employment was terminated without notice for
    serious misconduct. The statute law governing the termination of employment
    in the Federation of Saint Christopher and Nevis is the Protection of Employment Act. Section 5(b) which provides
    that an employer may terminate the employment of an employee “without
    notice if the employee is guilty of serious misconduct in or in relation to
    his or her employment.”

     

    [11] Learned counsel for the Hotel, Mr. Garth L. Wilkins, submitted that
    the Magistrate erred in her finding of fact that the appellant had rushed
    to prejudgment in respect of respondent; that the Hotel failed to conduct a
    proper investigation prior to the termination; and erred in finding that
    Ms. Stevens was wrongfully dismissed.

    This complaint seeks to challenge the Magistrate’s factual findings.
    The law on the approach to be taken by an appellate court when
    reviewing the findings of fact by a lower court is settled and
    routinely applied by this Court. In summary, an appellate court is
    generally reluctant to interfere with the findings of fact by a lower
    court since that court had the opportunity of seeing and hearing the
    witness give their evidence and to assess their demeanor and
    credibility. If authority is needed for this trite point it can be
    found in the seminal judgment of Lord Thankerton in

    Watt (or Thomas) v Thomas
    ,

    [6]

    a decision that has been followed on many occasions by this Court.

     

    [12] The principles in Watt v Thomas also apply, with
    necessary modifications in each case, to findings by the trial court based
    on inferences drawn from the primary facts. See for example


    Yates Associates Construction Company Ltd v Blue Sand Investments
    Limited


    [7]

    where Blenman JA stated:

    “The Court of Appeal should apply restraint not only to the judge’s
    findings of fact but also to the evaluation of those facts and the
    inferences drawn from them. It is axiomatic that the critical question
    which is before this Court is whether there was evidence before the learned
    trial judge from which she could properly have reached the conclusions that
    she did or whether, on the evidence, the reliability of which it was for
    her to assess, she was plainly wrong.”

    [8]

    [13] In relation to a finding of summary dismissal Lord Browne-Wilkinson
    commented on the role of an appellate court in

    Henry v Mount Gay Distilleries Limited (Barbados)
    ,


    [9]

    an appeal from the Court of Appeal of Barbados to the Privy Council, as
    follows –

    “The question whether misconduct is such as to justify summary dismissal is
    a question of fact and degree. As such, it is a matter for decision by the
    trial judge and not by the appellate courts: Clouston & Co. Limited v.
    Corry [1906] A.C. 122”.

    This passage was recently cited with approval by this Court in


    Ingrid Brantford-Hughes v Golden Years Home for the Elderly

    ,

    [10]

    an appeal from the Industrial Court of Montserrat.

     

    [14] The cases cited above make the obvious point – that on the issue of
    the summary dismissal of Ms. Stevens, the Hotel is appealing against
    findings of fact by the Magistrate.

    To succeed the Hotel must satisfy this Court that either that the
    Magistrate erred in principle in considering the evidence,

    or because it unmistakably appears from the evidence that she has not taken
    proper advantage of having seen and heard the witnesses, or that her
    findings on the evidence were plainly wrong. It is not enough for the
    appellant to say that the Magistrate came to the wrong conclusions or that
    this Court, reviewing the evidence, should come to different conclusions on
    the facts.

    [15] Applying these principles
    , I will now review the evidence and the Magistrate’s finding that Ms.
    Stevens was wrongfully dismissed.

    Complicity in Ms. Weekes’ conduct

    [16] The first reason posited by the Hotel for the summary dismissal of Ms.
    Stevens is that she was complicit in the theft of the Hotel’s property in
    that she was observed on camera beside Ms. Weekes when the latter was
    giving the drinks and food to the guests. This allegation was rejected by
    the Magistrate. At page 116 of the Record of Appeal she decided:

    “Court found that there was not enough evidence to show that Deborah was a
    party to the theft or even knew of the theft. The video footage showed that
    Deborah was busy back and forth at the time Andrea was handing over drinks
    to her family. The video footage shows that Deborah is (sic) no where
    nearby when Andrea hands over the drinks to her family.”


    This is a straightforward finding of primary fact by the Magistrate
    based on her

    assessment of the witnesses and her review of the video footage. There is
    no basis for this Court to interfere with the Magistrate’s finding that Ms.
    Stevens was not involved in the activities of Ms. Weekes in handing over
    food and drinks to her relatives. The Magistrate was justified in finding
    that the Hotel rushed to judgment concerning Ms. Stevens and had they
    carried out a proper investigation they would have found that there was a
    high possibility that Ms. Stevens was speaking the truth about not being
    involved in the handing over of the food and drinks the guests by Ms.
    Weekes. The allegation is not supported by the evidence and there is no
    basis for interfering with the Magistrate’s findings. This takes care of
    the first reason in the termination letter for dismissing Ms. Stevens.

    Misuse of the micros card

    [17] The Hotel’s more substantial complaint against the Magistrate’s
    decision is that she erred in not finding that Ms. Stevens’

    conduct in allowing her supervisor to use her micros card, which use
    resulted in loss to the company, was a serious breach of the Hotel’s
    policies and procedures of which she (Ms. Stevens) was aware and was
    sufficiently serious conduct to justify summary dismissal.

    [18] In paragraphs 5 and 6 above I set out the Hotel’s policy regarding
    micros cards and the parties’ respective positions on the issue. The
    Magistrate accepted that by signing the policy agreements Ms. Stevens knew
    she was not supposed to allow other persons to use her card. However, the
    Magistrate also took into account Ms. Stevens’ evidence that there was a
    practice at the Hotel for supervisors to assist by using the cashiers’
    micros cards to process sales. Her evidence on this point was supported by
    other witnesses who were all employees or former employees of the Hotel,
    namely Vanroy Richardson, Paulette Roberts and Rhesa Wattley. The
    Magistrate’s finding on this issue is at page 118 of the Record of Appeal –

    “The court found that Deborah had signed the policy agreement so she knew
    she was not supposed to let other persons use her card. However the court
    did accept that there was a practice where cashiers would allow supervisors
    to use their cards if the café was very busy. The court found that
    cashiers might well take the risk on busy nights to let their supervisors
    use their card as it was the very same supervisor responsible for checking
    them off the shift.”

    [19] It is apparent from the Magistrate’s Reasons for Decision that she
    considered both sides of the issue of Ms. Stevens’ misuse of the micros
    card. She found Ms. Stevens to be a humble and mature person and accepted
    her evidence, and that of her witnesses, that there was an established
    practice by which supervisors sometimes used micros cards of the cashiers
    “when things are busy”. She rejected the evidence of the Hotel’s witness,
    Jennifer Caines, that the system of supervisors using the cashiers’ micros
    cards did not exist

    . The finding that the system existed was open to the Magistrate on the
    evidence.

     

    [20] The Magistrate then went on to find, as she was entitled to do, that
    in view of the established practice of supervisors using the cashiers’
    micros card when things are busy; the decreased risk of loss because the
    Café was no longer doing cash transactions; and that Ms. Weekes was
    Ms. Stevens’ supervisor who checked her of the end of the shift, that the
    misuse of the card in all the circumstances did not amount to serious
    misconduct sufficient to terminate her employment without notice.

    [21] Mr. Wilkins also invited this Court to take into account that the
    Magistrate failed to take into consideration or failed to give sufficient
    weight to the evidence that Ms. Stevens had a vast disciplinary record
    including cash mis-handling, underperformance and unprofessional conduct.
    It is not surprising that the Magistrate did not attach weight to this
    evidence.

    Section 5(2) of the Act provides that where an employer is relying on
    past conduct to justify summary dismissal the conduct must have
    occurred within six months of the dismissal and the employee must have
    been warned of the consequences of repeating the misconduct. The
    alleged historical misconduct in this case took place well in excess of
    six months before the dismissal, was not mentioned as a reason for
    summary dismissal in the termination letter, and should not be
    considered in assessing whether the dismissal in July 2014 was proper.
    The historical misconduct should be regarded only as background in the
    context of the reasons for dismissal.


    [11]

    [22] In all the circumstances I find that the Magistrate’s finding that the
    summary dismissal of the respondent by the Hotel was wrongful, was a
    finding of fact based on the evidence and there is no basis for this Court
    to interfere with the Magistrate’s conclusion. The appeal cannot be
    sustained on this point.

     


    Issue 2 (ground 4): Notice of termination

    [23] The Magistrate, having found that Ms. Stevens’ employment was
    wrongfully terminated without notice, awarded damages based on the common
    law principle of reasonable notice. The Magistrate assessed the damages at
    three month’s salary having regard to Ms. Stevens’ age, length of service
    and difficulty in securing alternative employment. Two issues arise from
    this award:

    (a) Whether an employee is entitled as a matter of law to notice of
    termination of employment based on the common law principle of reasonable
    notice or the relevant notice period in section 7 of the Act.

    (b) If the dismissed employee is entitled to notice (which the Hotel
    disputes) whether the Magistrate erred as a matter of fact in calculating
    the amount of damages.

    Applicability of the Act to the appellant’s case

    [24] Mr. Wilkins submitted that the Magistrate was bound to follow section
    7 of the Act and award damages (if any) based on five weeks salary, being
    the amount in the section applicable to a person in Ms. Stevens’ position.
    Ms. Natasha S. Grey who appeared for Ms. Stevens contended that the
    Magistrate was correct in awarding damages based on the common law because
    the Act did not take away the right to such damages. This difference of
    opinion raises an important point as to how the Act should be applied in
    Saint Christopher and Nevis.

    [25] Section 7 of the Act provides that an employer shall give an employee
    notice of termination of his or her services and sets out the periods of
    notice depending on the amount of time that the employee worked
    continuously for the employer. Section 7 is subject to section 5 which
    provides that an employer may terminate the services of an employee without
    notice where the employee is guilty of serious misconduct in or in relation
    to his or her employment.

    [26] Section 3 of the Act lists six categories of persons to whom the Act
    does not apply. None of these categories is relevant to this case. Section
    3 in its original form contained the following proviso following the
    listing of the six exempted categories of employees:

    “Provided however that notwithstanding the provisions of this section, this
    Act shall apply in all cases except where the benefits to be derived by the
    employee are more favourable than those provided in the Act, whether or not
    the more favourable benefits accrue or will accrue by law, custom, contract
    or any other arrangement.” (“the Proviso”)

    The effect of the Proviso was that stipulations in the Act relating to an
    employee, such as the notice periods in section 7, were treated as minimum
    conditions and an employee was entitled to more favourable terms if they
    were available by law, custom, contract or otherwise. This meant that the
    principle of reasonable notice at common law would apply to an employee’s
    dismissal and his or her claim for compensation under the Act if it
    produced a notice period for the affected employee that was greater than
    the statutory minimum in section 7. Claims for compensation under the Act
    are dealt with in paragraphs 31-33 below.

    [27] In August 2014, the National Assembly amended section 3 by deleting
    the proviso entirely. The effect of the deletion is that section 7, and the
    entire Act, must now be read without reference to the stipulations that
    previously applied by virtue of the Proviso. However, section 60 of the Act
    provides that:

    “Nothing in this Act is to be interpreted to prevent any employer from
    providing in respect of any employee terms and conditions more favourable
    than those required by the Act.”

    According to Mr. Wilkins the repeal of the Proviso abrogated the common law
    principle of reasonable notice which no longer applies in Saint Christopher
    and Nevis, and provision for a longer notice period can be made only by
    contract pursuant section 60. This, he submitted, is the current state of
    the law in Saint Christopher and Nevis regarding notice of termination of
    employment.

     

    Applicability of the common law

    [28] Ms. Grey’s position was diametrically opposed to Mr. Wilkins. Her
    position was that the Act did not apply to Ms. Stevens’ dismissal. She was
    summarily dismissed by the Hotel and brought a common law claim for damages
    for breach of her employment contract.

    [12]

    She claimed that Ms. Stevens was wrongfully dismissed and was entitled to
    damages under the common law based on reasonable notice which in turn
    depended on all the circumstances of her employment. I agree with her
    submissions based on the following analysis.

    [29] In 1975 the Virgin Islands enacted The Labour Code Ordinance, 1975 (“the 1975 Code”). The
    1975 Code introduced a new form of action known as unfair dismissal and,
    among other things, remedies for breaches of the Code including the amount
    of notice that an employee should be given if he or she is unfairly
    dismissed. The 1975 Code also included a procedure for resolving claims for
    unfair dismissal by the Labour Commissioner and the Minister of Labour. The
    relevant provisions of the 1975 Code were considered by the Court of Appeal
    in 1985 in

    Burrill and another v Schrader and another
    .


    [13]

    A key issue in the appeal was whether the 1975 Code, having created the
    statutory remedy of unfair dismissal, had abolished the common law action
    for wrongful dismissal. In delivering the judgment of the Court, Chief
    Justice Sir Vincent Floissac, with whom Byron JA and Satrohan Singh JA
    agreed, noted that the common law action for wrongful dismissal predated
    the 1975 Code and that a statute should not be construed so as to abolish
    or restrict a common-law right or remedy in the absence of unequivocal
    language or necessary implication. The learned Chief Justice stated:

    “A statute or statutory provision should not be given an interpretation
    whereunder the statute or statutory provision effectively abolishes or
    restricts an existing common-law right or remedy unless the language and
    other components of the statutory context unequivocally or by necessary
    implication signify a legislative intention to abolish or restrict that
    right.”

    [14]

    Lord Hutton made a similar pronouncement in 2002 in the House of Lords
    decision in


    R (Rottman) v Commissioner of Police for the Metropolis

    when he said:

    “It is a well-established principle that a rule of the common law is not
    extinguished by a statute unless the statute makes this clear by express
    provision or by clear implication.”

    [15]

    [30] It is a matter of interpretation in each case whether new legislation
    abrogates an existing common law right. The Court of Appeal inBurrill and another v Schrader and another decided that the 1975 Code, properly
    construed, did not abolish the common law remedy of wrongful dismissal and
    that the two remedies, wrongful dismissal and unfair dismissal, continued
    to exist side by side. This is what the learned Chief Justice 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 unfairly dismissed. The statutory right was created by
    section C55 of the Labour Code … The result is that an employee now
    has a common law right and a statutory right. 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.”

    [16]

    [31] I have taken note that the Act in Saint Christopher and Nevis does not
    create the statutory remedy of unfair dismissal as in the 1975 Code and in labour legislation elsewhere in the Eastern
    Caribbean.

    [17]

    However, what is important is that the Act created a remedy for an employee
    or employer who complains that the provisions of the Act have been
    contravened in respect of his or her employment. The remedy is contained in
    Section 56 of the Act which provides that:

    “(1) Any employer or employee … may make a complaint to the
    Commissioner that the provisions of this Act have been contravened by an
    employer or employee and in any complaint made to the Commissioner in
    accordance with this subsection, the employee and employer shall have the
    right to be represented.

    (2) Upon receipt of a complaint under the preceding subsection, the
    Commissioner shall forthwith take appropriate steps in accordance with the
    provisions of the Labour Act, Cap. 18.18 to assist the parties to arrive at
    a settlement.” (emphasis added)

    If the Commissioner fails to achieve voluntary adjustment or settlement
    within 14 days of the receipt of the complaint, he must refer the dispute
    to the Minister of Labour who will, if necessary, conduct a hearing into
    the matter. Subsection 8 then provides that

    “Any employer or employee who is dissatisfied with any recommendations or
    findings given or made under this section may appeal to a judge in chambers
    who may in addition to any other remedy, order reinstatement of any
    employee or make any award of compensation.”

    [32] A similar provision to section 56 appears in

    section 35 of the Protection of Employment Act

    of Saint Vincent and the Grenadines except that the language in section 35
    is mandatory stating that an aggrieved employer or employee “shall” make a
    complaint to the Commissioner of Labour. Notwithstanding the mandatory
    language of the section Henry J. in

    Alicia Sardine-Browne v RBTT Bank
    ,


    [18]

    following the decision in Burrill and another v Schrader and another, found that the
    Protection of Employment Act did not abolish the common law action for
    wrongful dismissal and the statutory and the common law actions continued.
    Therefore, Mrs. Sardine-Browne was not precluded from making a claim in the
    High Court for wrongful dismissal.

     

    [33] The net result of these provisions in the Act is that an aggrieved
    employee has a statutory remedy, for challenging contraventions of the Act
    by using the procedures set out therein, and can receive an award of
    compensation as well as a right to be reinstated. In this case Ms. Stevens
    was not asserting such a remedy. She made a common law claim for wrongful
    dismissal.

     

    [34] In the circumstances I am satisfied that the principles articulated by
    Chief Justice Floissac in Burrill and another v Schrader and another

    [19]

    apply in Saint Christopher and Nevis. The common law action for wrongful
    dismissal existed in the twin-island state before the passage of the Act in
    1986 and there is nothing in the Act that suggests that this established
    common law right was abrogated. The repeal of the Proviso in 2014 did not
    affect the common law action for wrongful dismissal or the requirement for
    reasonable notice which is a part of the common law. The repeal of the
    Proviso means that a person claiming compensation or reinstatement under
    the Act can no longer rely on the principle of reasonable notice and must
    rely on the statutory periods of notice in section 7. On the other hand, an
    employee like Ms. Stevens who was summarily dismissed retains the right to
    bring a common law action for wrongful dismissal and, if successful, is
    entitled to damages based on reasonable notice of termination.

    [35] It is for these reasons that I agree with Ms. Grey’s submission that
    the Magistrate was correct in awarding damages to Ms. Stevens calculated by
    reference to the common law principle of reasonable notice and not the
    statutory notice periods in section 7 of the Act. The statutory notice
    periods apply only when an aggrieved employee files a complaint with the
    Labour Commissioner which is eventually adjudicated by the Minister of
    Labour.

     

    [36] To complete the issue of notice I agree with the Magistrate’s finding
    that based on Ms. Stevens’ term of employment with the Hotel (almost 10
    years), her age and the fact that she has not been able to find a job for
    over a year, she is entitled to damages based on three month’s salary.


    Issue 3 (ground 5):

    Whether the Magistrate erred in her assessment of Ms. Stevens’
    income

     

    [37] Mr. Wilkins submitted that the Magistrate erred in her finding of fact
    that Ms. Stevens earned, on a fortnightly basis, $900.00 and $1,000.00, in
    the slow season, and $2,000.00 in the high season. He argues further that,
    the pay slip adduced by Ms. Stevens in the court below was insufficient to
    support her claim that she made, on average, $2,964.80 per month. He relied
    on the established principle of law that the measure of damages for
    wrongful dismissal is the amount the employee would have earned if he or
    she had been given adequate notice. Ms. Grey, on the other hand, argued
    that the Magistrate properly considered Ms. Stevens’ unchallenged evidence
    of her monthly earnings. She therefore submitted that this Court should not
    disturb the Magistrate’s finding of fact that Ms. Stevens earned $2,000.00
    during the peak season and $1,000.00 during the slow season.


    [38] This is a short point. It was open to the Hotel, which would have
    had the complete records of Ms. Stevens’ employment, to adduce evidence
    to refute Ms. Stevens’ evidence. This was not done.
    Taking this into account I find that the Magistrate did not err in
    accepting Ms. Stevens’ evidence about her earnings and she should not
    be criticised for accepting the evidence that she made $2,964.80 per
    month.

    [39] I would dismiss the appeal against the Magistrate’s assessment of the
    damages.

     


    Issue 4 (ground 6):

    Whether the Magistrate erred in ordering the appellant to pay costs

     


    [40] Mr. Wilkins in his written submissions submitted the Magistrate
    erred in ordering the appellant to pay Ms. Stevens’ costs in the sum of
    $5,000.00. Ms. Grey, on the other hand contended that section 152 of
    the Magistrate’s Code of Procedure Act


    [20]

    confers upon the Magistrate a discretion to award reasonable costs up to
    $10,000.00. The Magistrate exercised her discretion properly by awarding
    costs, in the amount that she did, to the successful party. This appears to
    be a reasonable amount for a heavily contested trial in the lower court and
    there is no basis for this Court to interfere with the exercise of the
    Magistrate’s discretion.

     

    Conclusion


    [41] In all circumstances I would dismiss the appeal, affirm the orders
    made by the learned Magistrate and award costs of the appeal of
    $3,333.00 to the respondent.

    I concur.

    Davidson Kelvin Baptiste

    Justice of Appeal

    I concur.

    Gerard St. C Farara, QC

    Justice of Appeal [Ag.]

     

    By the Court

     

     

     

    Chief Registrar




    [1]

    Summons to appear filed 22nd January 2015 at page 1 of
    Record of Appeal filed 11th January 2018.


    [2]

    Record of Appeal filed 11th January 2018, page112.


    [3]

    Record of Appeal filed 11th January 2018, pages 110 to
    111.


    [4]

    Record of appeal filed 11th January 2018, page 117.


    [5]

    Cap. 18.27, Revised Laws of Saint Christopher and Nevis, 2017.


    [6]

    [1947] 1 All ER 582.


    [7]


    BVIHCVAP2012/0028 (delivered 20th April 2016,
    unreported).


    [8]

    Ibid at para. 46.


    [9]

    [1999] UKPC 39 at para 8.


    [10]

    MNILTAP2019/0002 (delivered 26th May 2020, unreported)
    at para. 32.


    [11]

    Supra note 10.


    [12]

    Record of Appeal filed 11th January 2018, page 2.


    [13]

    (1995) 50 WIR 193.


    [14]

    Ibid at page 197.


    [15]

    [2002] UKHL 20
    at para. 53


    [16]

    Supra at page 197


    [17]

    Cap. 27, Antigua and Barbuda Labour Code, Laws of Antigua and
    Barbuda; Cap. 15.03 Montserrat Labour Code Revised Laws of
    Monserrat, 2013; the Protection of Employment Act, Saint Vincent
    and the Grenadines


    [18]

    SVGHCV2006/0520
    (delivered 13th July 2015, unreported).


    [19]

    Supra fn. 11.


    [20]


    Cap. 3.17, Revised Laws of Saint Christopher and Nevis, 2009.

    /st-kitts-marriott-resort-v-deborah-stevens/
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