Kenrick Ambo Claimant v Dominica Air & Seaport Authority Defendant [ECSC]

• Jurisdiction: Dominica
• Judge: Thomas, J.
• Judgment Date: 11 April 2014
• Judgment citation (vLex): [2014] ECSC J0411-2
• Court: High Court (Dominica)
• Docket Number: SUIT NO. DOMHCV2010/0297
• Date: 11 April 2014

[2014] ECSC J0411-2

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE [CIVIL]

SUIT NO. DOMHCV2010/0297

Between:

Kenrick Ambo

Claimant

and

Dominica Air & Seaport Authority

Defendant

Appearances:

Mrs. Laurina A. Vidal-Telemacque of Law Office of Laurina A. Vidal-Telemacque, Counsel for the Claimant

Mr. Alick C. Lawrence S.C. and with him Ms. Vincia Auguiste, Counsel for the Defendant

1 Thomas, J.(Ag.): By way of a claim form filed on 4 ^th October, 2010 the claimant, Kenrick Ambo seeks various reliefs against the defendant, Dominica Air & Seaport Authority (the Authority).

2 In his Statement of Case the following issues are detailed as giving rise to the claim: On 1 ^st April 2010 the claimant was transferred from the Woodbridge Bay Port, at Roseau to the Long House Port at Portsmouth without receiving the $400.00 monthly allowance as provided for under Article 16 of the collective agreement ("the Agreement") between the defendant and the Public Service Union; between August 2005 and 13 ^th September 2010 the defendant refused/neglected to evaluate the claimant's job performance despite requests, resulting in non receipt of increments; on 5 ^th and 6 ^th April 2010 the claimant reported sick and $185.00 was wrongfully deducted from the claimant's pay contrary to Article 18 (2) B of the Agreement; on 25 ^th December 2009 and 16 ^th February 2010 the defendant wrongfully removed the claimant's name from the duty roster resulting in financial loss to the claimant; by letter dated 13 ^th September 2010 the defendant by letter signed by the defendant's General Manager, was wrongfully/unfairly summarily dismissed the claimant; and as a result of the foregoing the claimant suffered damages including, loss of salary, gratuity, and social security benefits.

3 At paragraph 10 of the said Statement of Case that the claimant avers that will rely on the conduct of the defendant as well as unfair treatment meted out to him by the defendant through its General Manager to support a claim for aggravated damages.

4 The particulars of the damages claimed are pleaded and the result is a total of $869,934.40. And the following are now claimed: reinstatement to his position as Shift Supervisor and damages; alternatively damages with interest thereon and costs.

Amended Defence

5 At paragraph 2 of the amended defence the defendant admits paragraph 4 of the Statement of Case but avers that the claimant was not entitled to the allowance because he did not meet the requirements of Article 16.3 of the Agreement.

6 The matter of requests for appraisals is denied by the defendant and states further that: the claimant was only appointed in 2006 and the policy in force required appraisals to commence one year after appointment and in 2007 there was a salary freeze; in 2008 to 2010 no employees were appraised due to a problem with the appraisal system; when entitlement to increments were found the payments were made with retroactive effect.

7 With respect to the deductions on two days of sick leave taken by the claimant; the defendants avers that with respect to 5 ^th April 2010, the claimant was not scheduled to work and no deduction was made, while as regards 6 ^th April 2010, the defendant admits that the claimant did report sick but contends that the defendant admits that the defendant did not accept this reason for the claimant's absence and as such was not paid.

8 The matter of the removal from the roster is denied by the defendant. Instead, it is pleaded that the claimant was removed because the claimant indicated he had no wish to work on those days. Further, or in the alternative the reasons pleaded are: the employer could alter the roster at any time pursuant to Article 3 of the Agreement, and the two days in issue were public holidays and work on such days was in the discretion of the management pursuant to Article 15.2 of the Agreement.

9 In relation to paragraph 8 of the Statement of Case, the defendant admits the issue of the letter but denies that the dismissal was wrongful or unfair. In this regard the defendant avers that the dismissal was grounded in gross misconduct, namely refusal to follow lawful oral and written instructions of his supervisor to report for work at the Cabrits Cruise Ship Berth.

10 At paragraphs 8 and 9 of its Amended Defence the defendant denies that it is liable for any loss suffered by the claimant and that any loss was due to the claimant's unlawful conduct. Also denied is the claimant's prayer for aggravated damages as no proper basis exists for such an award.

11 As regards loss of salary the defendant avers that: "…if the claimant is entitled to loss of salary (which is denied) such salary should be based on a reasonable notice period for termination of the claimant's employment, and having regard to the position of the claimant and that he only commenced working with the defendant on 2 ^nd August 2005, three months notice or salary in lieu of notice would be reasonable."

Reply

12 With respect to paragraphs 2 and 3 of the Amended Defence the claimant avers that: No. 4 Leblanc Lane, Goodwill was his address since 2000 which was known by the General Manager and the claimant's immediate supervisor; and that "appraisal is good management practice and a sine qua none for him to request appraisal but rather it was incumbent on management to appraise him."

13 In response to sub-paragraphs 3 (i), (ii) and (iii) of the Amended Defence the claimant contends that it is clear that the defendant admits that the claimant's rights were violated since: (a) Under the Protection of Employment Act the claimant is protected and automatically became permanently established six months after the commencement of his employment, being August 2005; (b) the claimant has a right to be appraised; ( c) the claimant reported sick on the 6 ^th and 7 ^th April 2010 and the defendant refused to pay the claimant; (d) the claimant's desire not to work is related to the claimant's Sabbath and his religion, being Seventh Day Adventist, and the removal of the claimant were discriminatory.

14 Finally, the claimant repeats that his dismissal was both wrongful and unfair because the defendant failed to observe the principles of natural justice as he was never informed of the charges against him in writing, the defendant did not provide the claimant and the union representative with a copy of the organizational chart; the order to the claimant was unlawful in that junior officers purported to order the claimant to do tasks set aside for junior officers.

Evidence

Kenrick Ambo

15 In his witness statement Kenrick Ambo gives the sequence of his employment with the defendant from August 2005 when he commenced 14 ^th September 2010 when he was handed a letter indicating his summary dismissal.

16 The major events in the course of the claimant's employment in summary are as follows: commencement of employment in August 2005 as a Security Liaison Officer; his new position of Security Shift Supervisor effective 1 ^st July 2006; after contesting the Salisbury constituency in 2005 as a candidate for the Dominica Labour Party the claimant severed ties with the party; at the end of 2006, was detailed to work as Shift Supervisor on 25 ^th December 2006, but the roster revealed he was "off duty"; was informed by letter dated 26 ^th March 2008 that he was exempt from secular employment during the period Friday sunset to Saturday sunset; despite the exemption the claimant was detailed to work on Saturday 2 ^nd January 2010 before sunset; three weeks after being detailed to work on his Sabbath, the claimant was transferred to the Longhouse Port at Portsmouth at which time he resided in Roseau; the claimant informed management of the hardship that would be caused to the claimant and his family if the claimant was transferred to Portsmouth from 1 ^st April 2010; the claimant was detailed to work on 5 ^th February 2010 during the claimant's Sabbath and refused permission to leave work at the beginning of the claimant's Sabbath; the claimant was detailed to work on 16 ^th February 2010 "a double day" but the claimant noted that his name was crossed out; on reporting to work in Portsmouth the claimant was informed that he had been detailed to work as an ordinary Security Officer rather than as a Shift Supervisor; the claimant objected to this new arrangement, and on 11 ^th April 2010 the claimant wrote to management stating his objection to what he considered to be an unlawful order; on 15 ^th April 2010 the claimant received a letter from Eric Charles regarding the claimant's insubordination and dereliction of duties and asked to attend a disciplinary hearing on 20 ^th April 2010; the claimant never received a displacement allowance of $400.00 to which he was entitled under Article 16 (3) of the Agreement; the claimant applied for leave from July 2010 to 20 ^th August 2010 which was not approved, but was instructed to proceed on leave from 12 ^th July 2010 to 7 ^th September 2010; on 6 ^th August 2010 the claimant was informed of his transfer to Woodbridge Bay the claimant was informed that he was detailed as an ordinary Security Officer to which he objected; the claimant was summoned to the office of the Chief Executive Officer for a meeting but the Chief Executive Officer did not turn up; the claimant was summoned to a meeting with the Chief Executive Officer on 13 ^th September 2010 which the claimant attended with his union representative; at the meeting the claimant was informed by the Chief Executive Officer that the Chief Executive Officer wanted to have a disciplinary hearing; at the meeting the claimant was asked to give an explanation for his actions by his union representative; on 14 ^th September 2010 the claimant was handed a letter dated 13 ^th September 2010 in which he was summarily dismissed for serious misconduct; on 16 ^th September 2010 the claimant's attorney...