Bermuda Healthcare Services Lt v Ideh

• Jurisdiction: Bermuda
• Judgment Date: 31 March 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2022 No 24

In the matter of an appeal against a determination and order of the Employment and Labour Relations Tribunal

And in the matter of the Employment Act 2000 and the Employment Act (Appeal) Rules 2014

Between:

Bermuda Healthcare Services Ltd and Brown Darrell Clinic

Appellants

and

Tuviere Ideh

Respondent

[2023] Bda LR 32

Civil Jurisdiction 2022 No 24

In The Supreme Court of Bermuda

Unfair dismissal — Appeal against award of Tribunal for 1 month's salary in lieu of notice and 16 week's wages as compensation — Whether matter should be remitted back to the Tribunal — Failure to give adequate reasons — Delay in delivering the award

The following cases were referred to in the judgment:

Island Construction Services Co v Brangman [2013] Bda LR 6

Matthews v Bank of Bermuda Ltd [2010] Bda LR 56

IRC Sandys Ltd v Thomas [2011] Bda LR 10

One Communications Ltd and Ors v Regulatory Authority [2017] Bda LR 123

R v Soneji [2006] 1 AC 240

Roberts v DPP [2008] Bda LR 37

Bell v Attorney General [2023] Bda LR 13

Howard v Bollington (1877) 2 PD 203

J Snelling for the Appellants

Respondent in person

JUDGMENT of Elkinson AJ

1. There was a Determination and Order made on 21 July 2022 (“the Determination” or “the Award”) by the Employment and Labour Relations Tribunal (“the Tribunal”) following hearings which took place on 24 March and 1 June 2022. There was a dispute between the parties to the Appeal. Mr Ideh had been an employee of the Appellants and contended that he had been subject to unfair dismissal under Section 28 of the Employment Act 2000 (“the Act”). The Appellants' position was that the relationship was terminated for cause and the maximum liability they had to their former employee was one month's notice with no entitlement to severance pay. The Tribunal held Mr Ideh was unfairly terminated and ordered that he be paid one month's salary in lieu of notice and 16 week's wages as compensation. There was an additional amount to be paid equivalent to 4¹/₂ days' vacation and ‘hold-back pay’ of $2,813. This is an appeal from that Award under section 44O(1) of the Act and is an appeal on a point of law only.

The Employment and Labour Relations Tribunal

2. The enactment of the Trade Union and Labour Relations (Consolidation) Act 2021 (“the 2021 Act”), which became operative on 1 June 2021, provided at Section 44 for the establishment of the Employment and Labour Relations Tribunal. This Tribunal has jurisdiction to hear and determine complaints, labour disputes, differences, conflicts and other matters referred to it under the Employment and Labour Code. Before this date, there had been 9 distinct tribunals and boards under the different labour legislation. Under the 2021 Act all disputes are now referred to the Employment and Labour Relations Tribunal. I refer to this because the main relief sought by Appellants is that the matter be sent back to the Tribunal to be heard again. Appellants' primary submission in support of that relief is that no notes of the oral evidence given by the parties have been produced by the Tribunal and that the Award was delivered long after the statutory period, leaving open to conjecture the answer to the question how did the Tribunal reach the conclusions which they did. Appellants submit that not having any notes of the evidence is a serious failure on the part of the Tribunal, individually and collectively. The failure is egregious and warrants a rehearing of the parties' dispute. Given the present role of the Tribunal and the important matters which come before it, a party could legitimately expect that notes of the evidence would be taken by one if not all of the members, or at least caused by them to be taken, in order that there is, as recited in section 44C(1)(b) of the Act, an “…expeditious and just hearing and determination of a matter before the Tribunal.”

Background to the employment relationship

3. As recited in the Tribunal's Award, Mr Ideh is an American who had come to Bermuda to take up the position as a Senior Manager for the medical facility owned and operated by Dr Brown and his wife, Mrs Wanda Hendon-Brown. He was required to serve a probationary period of 90 days and after that period he was confirmed as the Chief Operating Officer of the facility. However, after a short period in that post, he was terminated.

4. The Tribunal found that he was unfairly dismissed and the Tribunal determined that having regard to the seniority of the post and the customary procedure in such terminations that a typical notice period could be at least 3 or 6 months. Oral evidence had been given at the hearing. There were no written statements from the witnesses.

5. The Tribunal went on to make the Award as detailed above which they said they considered to...