Thomas v Fort Knox Bermuda Ltd

• Jurisdiction: Bermuda
• Judgment Date: 03 December 2009
• Date: 03 December 2009
• Docket Number: Commercial Jurisdiction 2006 No. 31
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Commercial Jurisdiction 2006 No. 31

BETWEEN:

ALLISON THOMAS

Plaintiff

and

FORT KNOX BERMUDA LTD

First Defendant

and

TROY SYMONDS

Second Defendant

and

SHARI POE

Third Defendant

Mr M Diel for the Plaintiff

Mr B Adamson for the 1st Defendant

Ms F Rana-Fahy for the 2nd and 3rd Defendants

The following cases were referred to in the judgment:

GAB Robins (UK) Ltd v Triggs [2008] ICR 529

Johnson v Unisys [2001] ICR 480

Robinson v Elbow Beach Hotel [2005] Bda LR 8

Roulstone v Cayman Airways [1992-93] CILR 259

Thomas v Cayman Islands National Insurance Company [2007] CILR 96

Abstract:

Termination of employment - Reasonable notice - Wrongful dismissal contrasted with unfair dismissal - Application to strike out portion of statement of claim

RULING of BELL, J

Introduction

1. This ruling is concerned with the effect of the Employment Act 2000 ("the Act"), and the Act falls to be considered in this case in the context of an application to strike out paragraph 8 of the statement of claim filed in these proceedings, on the basis that it fails to disclose any reasonable cause of action and/or is abusive and vexatious.

2. The Plaintiff ("Mr. Thomas") was employed by the first defendant ("the Company") as its "Chief Operations Officer". The terms of his dismissal and the consequent claim for compensation are set out relatively briefly in the statement of claim, and I will set out the pertinent paragraphs, as follows:

"5. By way of a letter dated 1st November, 2005 the Plaintiff's employment with the First Defendant was terminated with immediate effect and the First Defendant paying the Plaintiff one month's salary in lieu of notice.

6. It was an implied term of the Plaintiff's contract of employment that the Plaintiff's employment could only be terminated upon the giving of reasonable notice.

7. The First Defendant is in breach of the implied term as a reasonable notice period would be in excess of nine months.

8. Further and in the alternative the termination of the Plaintiff's employment is in breach of the Employment Act 2000."

3. There is one other matter to which I would refer at this stage, and that is the terms of an email exchange between counsel which took place in early November. Mr. Adamson sent an email to Mr. Diel, in which he noted that paragraph 8 of the statement of claim did not refer to any specific section of the Act, and asked that Mr. Diel confirm that the allegation in the pleading was to the effect that Mr. Thomas had been terminated in

breach of the sections contained in part IV of the Act. Mr. Diel responded that that was a fair assumption, noting that the Act provided for certain and limited reasons or ability to terminate an employee, and that the Company had not complied with the statutory regime and so was in breach.

The Written Submissions of Counsel

4. Both sides had prepared written submissions pursuant to a consent order for directions dated 15 October 2009 which provided for sequential submissions.

5. The submissions for the Company started by drawing a distinction between wrongful dismissal claims and unfair dismissal claims. In respect of the former, the Company submitted that such claims could be brought both before the Employment Tribunal ("the Tribunal") established by the Act, and by civil proceedings through the courts; in respect of the latter, the Company submitted that such claims were exclusively the domain of the Tribunal. Mr. Adamson supported his position by referring to two English authorities, GAB Robins (UK) Ltd v Triggs[2008] ICR 529 and Johnson v Unisys[2001] ICR 480.

6. The written submissions for Mr. Thomas contended that the Company's submissions were misconceived. Mr. Thomas relied upon section 18 (1) of the Act, which provides that an employee's contract of employment shall not be terminated by an employer unless there is a valid reason for termination connected with:

i. the ability, performance or conduct of the employee; or

ii. the operational requirements of the employer's business.

Mr. Thomas contended that no valid reason had been given and that the Company's sole defence has been to rely upon a contractual term which is contrary to section 18, and which expressly excludes cause.

7. The written submissions for Mr. Thomas then continued that the Company's submissions are contrary to the judgment of Kawaley J in the case of Robinson v Elbow Beach Hotel[2005] Bda LR 8. Mr. Diel contended that this case was exactly on point, and contained compelling and reasoned consideration of issues which either had not been raised or were not capable of being raised in the authorities relied upon by Mr. Adamson. Particularly, Mr. Diel submitted that those authorities either did not have enshrined constitutional rights, or this argument has not been considered by the court in question.

8. It is not clear from Mr. Diel's written submissions that he appreciated the grounds upon which Mr. Adamson relied to strike out paragraph 8, namely that proceedings under the Act based on unfair dismissal can only be taken before the Tribunal. His submissions started by saying that the application concerned wrongful dismissal, whereas Mr. Adamson's submissions had started with reference to unfair dismissal. Mr. Adamson's submissions sought to put the legal basis for wrongful dismissal and unfair dismissal in context, and his application was predicated on the basis that a claim under part IV of the Act is necessarily a claim for compensation based on unfair dismissal. In this regard, perhaps the reference in Mr. Adamson's submissions to wrongful dismissal claims being capable of being brought both in employment tribunals and the civil courts was confusing, although no doubt an argument can be made that a dismissal pursuant to section 25 is a wrongful dismissal if serious misconduct is not established. But in practical terms, wrongful dismissal claims properly so called (as to which see below) are pursued through the courts, not least because once it has been established that there was no serious misconduct, proceedings under the Act are effectively proceedings for unfair dismissal. Neither the statement of claim nor Mr. Diel's submissions used the words "unfair dismissal", but the email exchange referred to makes it clear that a claim based on part IV of the Act was maintained, whether or not such a claim was necessarily a claim based on unfair dismissal.

9. Before leaving the subject of counsel's written submissions, I would just refer to one aspect of those put forward by Mr. Thomas. There is a related piece of litigation

(proceedings # 162 of 2008) where Mr. Thomas petitioned for relief under section 111 of the...