Robinson v Elbow Beach Hotel

• Jurisdiction: Bermuda
• Judgment Date: 21 February 2005
• Date: 21 February 2005
• Docket Number: Civil Jurisdiction 2004 No. 282
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2004 No. 282

BETWEEN:

Quinton Robinson

Plaintiff

and

Elbow Beach Hotel

Defendant

Mr. K. Durrant for the Plaintiff

Mr. K. Hastings-Smith for the Defendant

The following cases were referred to in the judgment:

Slough Estates Ltd v Slough Borough CouncilUNK [1967] 2 All ER 270

Royal Bank of Scotland Ltd v Citrusdale Investments LtdUNK [1971] 3 All ER 558

Roberts & Hayward v Minister of Home Affairs and Public Safety and the Chief Fire OfficerBDLR [2004] Bda LR 5

Human Rights Act

Wrongful dismissal — Whether statutory framework for resolving employment disputes deprives the court of jurisdiction for wrongful dismissal claims — Sexual harassment complaint — Stay application — Dual proceedings — Common law

JUDGMENT of Kawaley, J

Background

By a Summons dated September 17, 2004, the Defendant sought a stay of the Plaintiff's wrongful dismissal action, which action was commenced by Specially Indorsed Writ issued on September 3, 2004.

The initial grounds of the Defendant's application were twofold. Firstly, it was contended that the subject-matter of the action was being investigated by an inspector under the Employment Act 2000. Secondly, and more fundamentally (albeit a point only explicitly advanced in argument), it was asserted that the statutory framework for resolving employment disputes under the 2000 Act deprived the Court of jurisdiction to entertain a wrongful dismissal claim.

In light the production by the Plaintiff of a September 30, 2004 letter from the inspector making it clear no investigation or other proceeding was still pending under the statutory regime, Mr. Hastings-Smith on the hearing of his Summons adroitly sought, and obtained, leave to amend his Summons. He thus also sought a stay, in the alternative, on the grounds of the pending board of inquiry of proceedings under the Human Rights Act. These proceedings are apparently brought by a former co-worker of the Plaintiff in relation to the same sexual harassment complaint which formed the basis of the summary dismissal decision which forms the subject of the present action.

On February 15, 2005, I granted a stay of the present action pending the determination of the board of inquiry proceedings under the Human Rights Act concerning the factual basis for the Plaintiff's dismissal, and rejected the argument that this Court had no jurisdiction to entertain a wrongful dismissal claim. Because of the practical ramifications raised by the jurisdictional point raised by the Defendant's Counsel in relation to a relatively new employment statute which has to date received little attention from the Courts, I now give reasons for what was an otherwise uncomplicated decision.

Stay Application

The Plaintiff's pleaded case is comprised of the following crucial averments. Firstly, it is alleged that on or about August 16, 2002, the Defendant employed the Plaintiff as a Manager in the Housekeeping Department. On or about June 23, 2003 following a complaint of sexual harassment against him by a female co-worker, the Plaintiff was suspended without pay by the Defendant. The complainant made a complaint to the Human Rights Commission (‘HRC’) against the Plaintiff in respect of this incident, and the HRC commenced an investigation. On or about December 3, 2003, the Defendant agreed to take no further disciplinary action against the Plaintiff ‘until the Commission's investigation under the Act was completed in its entirety’. The HRC made a preliminary finding against the Plaintiff on or about February 27, 2004, but this was rejected by the Plaintiff who requested that the matter be referred to a board of inquiry. On or about April 19, 2004 the HRC referred the complaint to the Minister, who appointed a board of inquiry.

In paragraph 10 of the Statement of Claim, the following pivotal plea is set out: ‘On or about 31^st March 2004 the Defendant wrongfully dismissed the Plaintiff summarily pursuant to section 25 of the Employment Act 2000 effective as of the date of the Findings on the ground that he was guilty.’ Although the pleading hints at an agreement, collateral to the employment contract, not to terminate the Plaintiff's employment until the Human Rights Act 1981 proceedings were finally determined, which contract was breached by the Defendant's termination based on the HRC's preliminary findings, this cause of action is not presently formally pleaded.

The Plaintiff's sole claim is for ‘wrongful dismissal’, either at common law or, perhaps, for breach of section 25 of the Employment Act itself.

Mr. Hastings-Smith sought a stay on very simple grounds. As a matter of fact, it was unjust, he argued, for the present action to be proceeding while substantially the same factual issues on which the Plaintiff's claim before the Court depended were before the board of inquiry under the Human Rights Act. This would result in the possibility of inconsistent findings. At the very least, the Court action should be stayed pending the conclusion of the determination of the HRC complaint. He relied on authorities relating to the abusive and oppression caused by the pursuit of dual proceedings against the same opponent in respect of the same subject matter: Halsbury's Laws, volume 37, 4^th edition (Reissue) paragraph 934–950; Slough Estates...