The Court of Appeal has dismissed an appeal by Myett’s Enterprises Limited against a dozen former employees who lost their jobs after Hurricane Irma severely damaged the hotel and restaurant in September 2017.
The year after the storm, the employees successfully sued for non-payment of severance they said was owed to them. Myett’s appealed their High Court victory, but the employees recently won again, with the Court of Appeal ordering their ex-employer to pay them more than $96,000.
In a May 19 judgment, Chief Justice Dame Janice Pereira dismissed Myett’s arguments that the workers were not entitled to the severance pay and sided with the 12 employees.
Dancia Penn, QC, represented Myett’s in the matter, while Richard Rowe and Daniel Fligelstone-Davies appeared for the former employees in the appeal.
‘Act of God’
After the 2017 hurricanes, Myett’s informed its employees that it would not be able to continue their employment, and since then they have not been recalled to work, according to the May 19 judgment.
The employees then claimed they were terminated, and demanded payment in lieu of notice and severance pay as they said was prescribed in the Labour Code 2010. However, Myett’s claimed it didn’t owe the money, and said the employment was only “temporarily suspended” as a result of an “act of God,” the judgment stated.
The employees filed a claim for pay in lieu of notice and severance pay under the Labour Code, alleging that Myett’s had effectively terminated their employment. The employees then sought a summary judgment on the basis that Myett’s “had no real prospect of successfully defending the claim,” and that “force majeure and/or act of God” was not a valid defence to their claim under the Labour Code.
A High Court master then granted summary judgment in their favour for “an amount to be assessed,” but Myett’s appealed, contending that the master misinterpreted the relevant section of the Labour Code and that the employees were not terminated, but temporarily suspended and thus not entitled to severance, according to the May 19 judgment.
Myett’s also argued that the master erred in “bifurcating the issues of liability and quantum on the summary judgment application,” Dame Janice wrote.
She added, “I am not persuaded, on the evidence, that Myett’s had merely temporarily suspended the respondents. As stated earlier, the respondents were informed in October 2017 that Myett’s would not be able to continue their employment.”
This disclosure, she noted, was followed by letters from co-owner Valerie Rhymer to three of the employees stating that Myett’s “would not be able to continue their employment at this time” and wishing them well in their future endeavours.
The judgment went on to cite a letter from co-owner Kareem Rhymer to the labour commissioner, which stated, “We were forced to go out of business due to the disasters and therefore have no jobs for them and no money to pay them severance pay at this time, through no fault of ours. We have given them letters of permission to seek work elsewhere. Some have already secured jobs in the territory.”
The chief justice called these remarks “wholly inconsistent” with the company’s contention that it intended to re-engage the employees.
“It seems to me to be quite incompatible with a temporary suspension for an employer to be wishing its employees well in their future endeavours as well as encouraging them to seek other employment. Indeed, these statements, when considered together with the fact that Myett’s has not given any indication of when it will re-engage the respondents, clearly suggest a termination of their employment,” the judgment stated.
In dismissing the appeal, Dame Janice also ordered Myett’s to pay prescribed costs to be assessed by the High Court. On June 21, after the matter was referred to the High Court for an assessment of damages, Master Alvin Shiva Pariagsingh awarded the workers a total of $96,789.50. During that hearing, Mr. Rowe and Allydah George represented the employees, and Ms. Penn and Astra Penn represented Myett’s.
The Cane Garden Bay hotel and restaurant business suffered severe damages in the storm and was forced to shutter most of its operations — besides a small bar and gift shop — throughout the 2017-2018 tourist season.
In 2018, five of the suit’s claimants spoke to the Beacon about their complaints: Kimmy Cooke Leigh, Cheryl Couture, Cora Liburd, Luz Adell Callwood and Ernie Claxton. An additional four claimants — Rudolph Stone, Veronica Bailey, Carina Industrius, and Xiomara Mason — confirmed the veracity of their comments.
After they were told in late September 2017 that they would no longer be employed at Myett’s, 18 of the company’s employees went to Labour the next morning to inquire about their rights, the workers told the Beacon at the time.
The Labour Code stipulates that staff who have worked at an establishment for more than one year should receive nine days’ worth of payment from their employer per year of employment, as well as three-fourths of one day’s worth for any additional month.
Ms. Rhymer said yesterday that the owners are “very glad” the case is over.
“It took many more years than it should have. When we were served papers from the employees, we were still devastated. Government was still devastated. We couldn’t settle through Labour,” she said.
She also suggested the portion of the Labour Code in question should be reconsidered to provide for businesses devastated by events like Irma.
Employees’ claims
When they spoke to the Beacon in November 2018, the employees said that after the Labour Department allegedly failed to assist them, 12 of them retained Mr. Rowe as legal counsel. In late February 2018, the lawyer wrote to Triad Company Services Limited, Myett’s Enterprises Limited’s registered agent, and copied the Myett’s owners and the labour commissioner.
In the letter, he demanded that each of his clients be paid severance, notice and a late fee of five percent, and said they would file suit in 14 days if they didn’t receive any further communication.
Section 89(3)(c) of the Labour Code states that employees who can no longer be employed at a business because it was impacted by an act of God are considered redundant. Redundant employees, based on Sections 89(2)(c) and 104(1) of the law, are entitled to notice and severance.
In the case of a temporary layoff, the code also states that “if no date of re-employment is given and three months have elapsed without the employee being re-employed, severance pay shall be payable immediately upon the expiration of the three-month period [during which the employee was not re-employed].”