Kaino Jones v S.L. Horsford and Company Ltd
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Thompson Jr J |
| Judgment Date | 12 February 2024 |
| Judgment citation (vLex) | [2024] ECSC J0212-4 |
| Docket Number | NEVHCV2021/0074 |
| Court | High Court (Saint Kitts and Nevis) |
NEVHCV2021/0074
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Mrs. M. Angela Cozier for the Claimant
Mr. Damian Kelsick K.C. and Ms. Chante Francis for the Defendant
In or about November to December of 2020 the Defendant company (“Horsford's”) had a problem. The problem was this. Their Nevis branch only had 3 loaner vehicles in stock. Loaners are vehicles which are lent to customers while their vehicle is being repaired by Horsford's. Horsford's are in the vehicle sales business so that even loaners could be sold.
Of the three loaners, one was sold to X. Another was sold to Y. A Ms. Z saw the final loaner and wanted to purchase it. She said as much to the Claimant, who was the Car Sales Assistant Manager at Horsford's in Nevis. She came with a check to purchase the vehicle, but the Claimant did not accept Ms. Z's check nor give the vehicle to her. The sale was delayed and eventually Ms. Z grew tired of the Claimant's explanations for why she could not have the vehicle. She complained to someone else who brought the matter to the attention of the Claimant's bosses in St Kitts.
Mrs. Natalie Kelsick Marshall (Horsford's Executive Director with responsibility for the automotive division) called Mr. Jones in early January 2021. Both Mrs. Marshall and Mr. Jones agreed that there was a heated conversation between them, and that Mrs. Marshall asked Mr. Jones if he knew how to do his job. Mrs. Marshall then spoke with Mr. Jones' immediate supervisor in St Kitts, a Mr. McEachrane. She then spoke with a member of Horsford's Board of Directors and on the following day (January 26, 2021), Mr. Jones was served a letter.
The letter is important and is set out below:
“ Dear Mr. Jones,
Management is extremely disappointed that you were implicated in the recent acts of gross mismanagement during your employment as the Assistant Manager, Automotive at S.L. Horsford Nevis Ltd. Your infractions are listed as follows:
1. Withholding a company vehicle for sale without authorization in December 2020.
2. Issuing a pro forma invoice for the same vehicle to a customer without completing return to stock procedure. Vehicle was due to return to stock in October 2020.
3. Replacing 4 tires on the same company vehicle totaling $2,328.08 on 6 th January 2021 without authorization.
4. Performing a diagnosis on the same company vehicle with a third-party mechanic without authorization on 21 st January 2021.
5. Performing a repair to same company vehicle totally (sic) $1,748.21 with a third-party mechanic without authorization on 21 st January 2021.
6. Abandoning on duty foreman while performing work in Nevis on Saturday 16 th January.
7. Declining sales performance over the last three years.
Mr. Jones, management questions your integrity, loyalty and work ethics. Your behavior goes against company policies. You were issued a written warning on 8 th January 2020 for similar infractions, and it was clearly stated that any re-occurrence of the same nature would result in immediate termination. Therefore, we are forced to terminate your services with S.L. Horsford Nevis Ltd effective January 26, 2021, for serious mismanagement .
The enclosed cheque for $7,465.08 represents the total monies to which you are entitled and was calculated as per the attached sheet .
Yours faithfully
S.L. Horsford & Co Ltd
Natalie Kelsick Marshall
Executive Director”
The letter summarily terminated Mr. Jones' employment and enclosed a check in the sum of $7,465.08 representing 2 months' pay in lieu of notice. This sum was precisely what Mr. Jones was entitled to under his contract of employment 1 with Horsford's since he had been employed with them since September 11 th, 2015.
Mr. Jones was aggrieved by the letter and sought and obtained legal advice. He sought and obtained legal advice and initiated these proceedings seeking damages for his wrongful dismissal. Mr. Jones' lawyers submitted that he was entitled to damages in the sum of his monthly salary 2 for each month that he was terminated until the date of trial. They thus sought the sum of $100,606.92 as damages for what they say was Horsford's wrongful breach of their client's contract of employment.
Horsford's position was a two pronged one. Firstly, they contended that they did not summarily terminate the Claimant but that they had terminated his employment in accordance with the law. Mr. Kelsick K.C. submitted that Section 7(2) of the Protection of Employment Act provided for two months' pay in lieu of notice for an employee in Mr. Jones's position. In his view, Mr. Jones could have no complaint as he received the requisite statutory pay in lieu of notice and further submitted that the statute did not provide that any reason had to be provided for dismissal.
In support of his submissions, Mr. Kelsick K.C. relied on the reasoning of Mr. Justice Mitchell (as he then was) in the case of Sonia Hamilton v Colonial Life Insurance Company (Trinidad) Ltd, Claim No. SKBHCV2001/0113 in the following terms:
“[7] The first question that the court must answer is whether Mrs. Hamilton was wrongfully dismissed. There is a Protection of Employment Act in force in the Federation. That Act, among other things, sets out a minimum period of notice of termination that must be given to an employee. An employer cannot contract out of that minimum period… [8] The law of the Federation does not require a reason to be given for dismissal. No reason for the dismissal was given about which Mrs. Hamilton can complain. It was a brutal dismissal, coming as it did when she had just returned from sick leave. But, it was not legally wrongful…”
Therefore, Mr. Kelsick K.C. argued that his primary submission was entirely dispositive of Mr. Jones's case. All the same, Mr. Kelsick K.C, further submitted that it did not matter that the letter characterized the reasons for Mr. Jones's dismissal as ‘serious mismanagement’ or ‘serious misconduct’. It was Horsford's argument that the common law provided that summary dismissal can be justified by facts ascertained by the employer after the dismissal and on grounds differing from those alleged at the time of the dismissal.
Horsford's relied on Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 ChD 339 where the Court of Appeal held that the receipt of a secret commission by the Respondent was a good ground for his dismissal from employment even when that secret commission was not discovered until after dismissal had taken place and might have been an isolated act. The reasoning of Russell LJ in Cyril Leonard & Co v Simo Securities Trust Ltd [1971] 3 All ER 1313 at 1320 – 1321 in the following terms lends further support to Horsford's position.
“ Apart from authority, I myself would take the view that, if the manager had before the alleged premature determination of the contract been guilty of conduct such as would deprive him of the right to insist on the contractual provision for notice to determine, it would be quite wrong, when that conduct is proved in an action for wrongful dismissal, that he should succeed in that action on the ground that the other party had not known enough about his misdeeds when he determined the contract.”
This argument elegantly sidestepped the question of whether the grounds set out in the letter amounted to grounds for summary termination and sought to rely on the matters raised in Horsford's counterclaim as...
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