Ivor Keithley Phillip v Saint Christopher and Nevis Solid Waste Management Corporation

• Jurisdiction: Saint Kitts and Nevis
• Judge: Gill, J.
• Judgment Date: 30 April 2024
• Judgment citation (vLex): [2024] ECSC J0430-4
• Docket Number: SKBHCV2022/0064
• Court: High Court (Saint Kitts and Nevis)

Between:

Ivor Keithley Phillip

Claimant

and

Saint Christopher and Nevis Solid Waste Management Corporation

Defendant

SKBHCV2022/0064

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Damian Kelsick KC with him Ms. Chanté Francis and Ms. Hadya Dolphin for the Claimant

Mr. Terence V. Byron for the Defendant

Gill, J.

1 A disgruntled former employee seeks damages from his former employer for alleged breaches of the contract of employment to pay him certain benefits. The employer stands firm that the employee is not entitled to the money he claims.

2 The claimant Ivor Keithley Phillip (“Mr. Phillip”) was employed by the defendant Saint Christopher and Nevis Solid Waste Management Corporation (“SWMC”), a statutory corporation established by the Saint Christopher and Nevis Solid Waste Management Corporation Act, 1996 whose existence was continued by the Solid Waste Management Act.1 Mr. Philip is asking the court to award him general damages, interest and costs against SWMC for its failure to pay him accrued vacation pay, an incentive/merit bonus for 2 years and a pro-rated double salary for

the year 2021, which he alleges is in breach of his contract of employment with SWMC.

Issues

3 The court is tasked to determine:

• — whether the claimant is entitled to damages for:

  • i. accrued vacation pay

  • ii. incentive/merit bonus for 2 years

  • iii. pro-rated double salary for 2021

• — if he is so entitled, the quantum to be awarded to him.

Law and analysis

4 At the trial, SWMC did not call its sole witness, whose witness statement was filed on May 25, 2023. Learned counsel for SWMC, Mr. Byron, told the court that the witness was overseas. Nevertheless, counsel did not make any application in that regard, and was keen to proceed to trial without the witness. Accordingly, SWMC has no evidence in this case. On this matter, Mr. Phillip referred the court to the case of Herrington v British Railways Board2 where Lord Diplock stated:

“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.”

5 Mr. Phillip submits that it is reasonable to infer that there was a deliberate choice made by SWMC not to have its sole witness available for cross-examination and that the court is entitled to draw “from the facts which have been disclosed [by Mr. Phillip] all reasonable inferences as to what are the facts which the defendant has chosen to withhold”.

6 The only evidence before the court is that of Mr. Phillip, who was cross-examined. Notwithstanding the absence of evidence from SWMC, Mr. Phillip still has to prove his case (in respect of all of his claims) to the required standard.

7 Mr. Phillip states that he was employed by SWMC as follows:

• — Planning/Engineering Manager – from January 15, 2018 for five and a half months

• — Operations Manager – from July 1, 2018 for about three months

• — General Manager – for 3 years from October 1, 2018 to September 30, 2021.

8 Mr. Phillip's employment as General Manager was by virtue of an employment agreement dated October 1, 2018 (“the agreement”). By the agreement, Mr. Phillip was employed as General Manager of SWMC for a fixed term of 3 years, from October 1, 2018 to September 30, 2021 on a monthly salary of $10,000.00 (annually $120,000.00).

Vacation pay

9 In his statement of claim and witness statement, Mr. Phillip claims the sum of $14,230.88 for unpaid unused vacation leave for 54 days. This was after SWMC paid him $10,692.28 for 39 days. The documents explained, by the number of days and a daily rate, how the claimed amount was arrived at.

10 On the day of the trial, and before it began, learned counsel for SWMC, Mr. Byron, informed the court that SWMC was conceding that it owed Mr. Phillip an outstanding sum of $5,182.22 in relation to his claim for vacation pay. In closing submissions, Mr. Byron explained that this was his advice at the time, but as a result of further information, that position has been reversed.

11 Clause 10.2 of the agreement provided that Mr. Phillip was entitled to a total of 27 working days paid vacation leave per annum. His evidence is that he was also entitled to 27 working days' vacation per annum in respect of the other capacities in which he worked as an employee of SWMC. Therefore, in addition to the period under the agreement, he claims vacation pay for the period January 15, 2018 to September 30, 2018. He says that in relation to the periods not covered by the agreement, the arrangement for 27 days' vacation leave per annum was oral.

12 In his statement of claim, Mr. Phillip averred that he was entitled to vacation pay for 96 days (from January 15, 2018 to September 30, 2021), but he was only paid for 39 days, that is, short 54 days.

13 Remarkably, in Mr. Phillip's closing submissions, while stating for the first time that he is owed vacation pay for 100 days (instead of 96), he posited that the amount owing to him for accrued but unpaid holiday pay is $8,735.63. This was calculated using a daily rate of $459.77 for 19 days instead of 54 days as claimed. The new figure is based on section 5(1) of the Holidays with Pay Act, 3 which provides:

Where the employment of a worker who has become entitled to an annual paid holiday under the provisions of section 3 of this Act is terminated for any cause and the worker has not taken any part or all of such holiday, the employer shall be deemed to have given such holiday to the worker from the date of termination of the employment, and shall forthwith pay to the worker, in addition to all other amounts due to him or her, his or her holiday pay or the balance thereof to which he or she is entitled under the provisions of section 4 of this Act in respect of the period of his or her employment with such employer up to the date upon which the worker last became entitled to an annual paid holiday, and, in addition, shall pay to the worker his or her holiday pay for the period of his or her employment between the date on which he or she became entitled to his or her last annual paid holiday and the date of the termination of his or her employment.

14 The daily rate used by Mr. Phillip in his statement of claim and witness statement was $461.54. The daily rate was calculated based on Mr. Phillip's salary as General Manager.

15 I take the amount of $8,735.63 stated in Mr. Phillip's closing submissions as a concession to the sum initially claimed. I conclude that Mr. Phillip is now accepting that he was fully paid for his vacation leave under the agreement, and is now only

claiming for the period from January 15, 2018 to September 30, 2018. I also take the daily rate of $459.77 to be a concession to that of $461.54 also initially claimed

16 Under cross-examination, Mr. Phillip testified that he had written agreements for the other positions he held as Planning/Engineering Manager and Operations Manager with SWMC from January 15, 2018 to September 30, 2018. These were not produced in evidence. Therefore, there is no evidence before the court as to what Mr. Phillip's salary was in any of those posts. Mr. Phillip's evidence clearly reveals that he was promoted from Planning Engineering Manager to Operations Manager, and further promoted from Operations Manager to General Manager. Without evidence before the court, it is obvious that the 3 different positions carried different salary scales/levels as is in the normal course of employment with promotions. Even if the court accepts that Mr. Phillip is owed vacation pay for January 15, 2018 to September 30, 2018, without evidence of Mr. Phillip's salary for the previous posts, a daily rate for the calculation of the amount owed cannot be properly ascertained. In these circumstances, Mr. Phillip's claim for payment for unused vacation days will fail.

Incentive/merit bonus

17 Mr. Phillip claims $36,000.00 for unpaid bonus payments for years 2 and 3 of his employment with SWMC as General Manager. He alleges that SWMC breached Clause 5.3 of the agreement, which reads:

Following the General Manager's annual performance evaluation he shall be eligible for an annual discretionary bonus of between zero percent (0%) and fifteen percent (15%) of the General Manager's annual base salary. The factors or criteria considered for the bonus are developed by the Board of Directors following discussion and input from the General Manager on an annual basis and must be agreed to and signed by the General Manager, the Board of Directors and a witness.

18 Mr. Phillip claims that he is entitled to $18,000.00 for each year he was not paid a bonus because (i) after his first year of employment as General Manager in 2019, he was paid a bonus of $18,000.00 which represented 15% of his annual base salary of $120,000.00, although a performance evaluation was never conducted with him by the Board of Directors; and (ii) he fulfilled all of his duties and never received any complaints about his performance from the Board of Directors, and therefore, there is no valid reason for SWMC's failure or refusal to pay him his bonuses.

19 Mr. Phillip cited the case of Horkulak v Cantor Fitzgerald International, 4 which was distinguished from Lavarack v Woods of Colchester Limited, 5 (both dealing with employees who were denied bonus payments), to...