Orin Roberts v Financial Services Regulatory Commission

• Jurisdiction: Saint Kitts and Nevis
• Judge: Lanns, J.
• Judgment Date: 21 June 2018
• Judgment citation (vLex): [2018] ECSC J0621-3
• Court: High Court (Saint Kitts and Nevis)
• Docket Number: CLAIM NO. SKBHCV2016/0019
• Date: 21 June 2018

[2018] ECSC J0621-3

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SKBHCV2016/0019

Between:

Orin Roberts

Claimant

and

Financial Services Regulatory Commission

Defendant

Appearances:

Ms. Derriann Charles holding for Mr. Adrian Scantlebury for the Claimant

Mr. Anthony Gonsalves QC, with him Mrs. Tashna Powell-Williams for the Defendant

Introductory and Brief Factual Background

1 Lanns, J. [AG]: The claimant, Orin Roberts, (Mr. Roberts) sues the defendant Financial Services Regulatory Commission (FSRC) for wrongful dismissal and for breach of statutory duty under the Holidays with Pay Act (HPA). After a thorough consideration of the evidence, the arguments of learned counsel, and the governing legal principles, I have concluded that Mr. Roberts has not established that the FSRC wrongfully dismissed him or was in breach of contract when it terminated his services, nor has he proven a violation of the HPA. I have determined however, that the FSRC's calculation of the payment in lieu of notice to which Mr. Roberts was entitled upon his termination was made incorrectly, and order payment for that sum.

2 On the 2 ^nd September 2013, Mr. Roberts commenced employment with the FSRC as Financial Inspector II. The terms of Mr. Roberts' employment were set out in a letter dated 12 ^th July 2013, (‘the July 2013 letter of offer’ or ‘contract’ signed by the Director of the FSRC, Ms. I. Fidela Clarke (Ms. Clarke) presumably on 12 ^th July 2013.

3 The letter stated as follows:

“Dear Mr Roberts.

Offer of Employment

Following your application for a position with the Financial Services Regulatory Commission and our subsequent discussions, we are pleased to offer you full time employment commencing 2 ^nd September 2015.

Your position will be Financial Inspector II and the normal working hours of employment shall be from 8:00 am to 4:00 pm Monday to Friday during which one hour may be taken for lunch between 12:00 pm to 2:00 pm.

It is accepted and agreed that you may be required to work such hours outside normal hours of employment as we consider necessary to meet the needs of the Commission, particularly and without limitation to the generality of the foregoing to ensure the completion of time sensitive assignments. Your responsibilities and duties will be set out in a Job Description which will be provided.

Your remuneration during your probationary period will be:-

Monthly salary $5,216.00 (K39 in Scale 39 – K 41 or $5,216 – $5,715)

Travelling allowance $400.00 (Proof of ownership of a vehicle must be submitted in order to obtain allowance).

Telephone Allowance $25.00

Professional Allowance $1,250 – $2,250.00 (Proof of Professional Qualifications (ACCA, CPA, CMA) must be provided in order to obtain allowance).

Annual increments to your salary may be approved if you have received a positive performance review.

After the completion of three months employment, you may be offered a contract for a period of three years which attracts a gratuity of 20% of base salary, and be permitted to participate in our non-contributory medical scheme.

It is accepted and agreed that your employment is voluntary and may be terminated by three months notice in writing by you or by the Commission.

Please sign, date and return to us the copy of this letter to signify your acceptance of the terms and conditions set out above. We look forward to working with you.

Yours faithfully,

I. Fidela Clarke

Director

Accepted

Date”

4 Mr. Roberts accepted the offer by signing beside the word ‘Accepted’ and by inserting the date ‘22/7/13’.

5 Ms. Clarke demitted office at the FSRC on or about the 4 ^th November 2013. She was succeeded by Ms. Kerstin Petty (Ms. Petty) who was appointed to act as Director of the FSRC. Before demitting office, Ms. Clarke prepared a staff appraisal report which in essence showed that Mr. Roberts' performance was commendable for the two months he had worked so far under her supervision. The second staff appraisal report was prepared by Ms. Petty. It covered the period 3 ^rd November 2013 to 12 ^th December 2013, and it reported that Mr. Roberts' performance was satisfactory.

6 The ‘probationary period’ expired on the 29 ^th November 2013. However, Mr. Roberts continued to work beyond the probationary period without any expressed agreement for an extension of the probationary period and, until the 12 ^th February 2014, without any formal offer of contract of fulltime permanent employment, or any formal confirmation of full-time appointment as Inspector II.

7 By letter dated 12 ^th February 2014, Mr. Roberts was informed by Ms. Petty that the FSRC's Board of Commissioners had agreed to offer him full-time employment at the FSRC effective 1 ^st December 2013. The letter reads as follows:

“Dear Mr. Roberts:

At the meeting of the Board of Commissioners (“The Board”) held on Wednesday 29 ^th January 2014, the matter of your employment was discussed by the members of the Board.

Please be advised that the Board agreed to offer you full-time employment at the Financial Services Regulatory Commission (FSRC) effective 1 ^st December, 2013. As a full-time employee, you will participate in the FSRC's Contributory Pension Plan (1%) and Non – Contributory Medical Insurance Scheme.

The salary scale for your position, Financial Inspector II, is EC$65,100 – 71,340 (annually). Additionally, telephone (EC$ 25) and travel (EC$ 400) allowances are paid monthly. Travel allowance is paid once proof of ownership of a vehicle is produced. You will be subjected to an annual appraisal which would determine if annual increments are recommended to be paid.

Kindly acknowledge receipt of this correspondence by signing and dating enclosed copy.

Yours sincerely

Kerstin Petty

Director (Ag)”

Signed by:——————————————-

Date:——————————————-

8 Mr Roberts did not accept the terms and conditions, or sign the new letter of offer of full-time employment. Indeed, he took issue with the contract as offered, claiming that it was at variance with the terms and conditions of his previous letter of offer/contract. 1

9 Then, a series of correspondence passed between (a) Mr. Roberts and Ms. Petty; (b) Mr. Roberts and Mrs. Hilary Hazel, Chairperson of the FSRC, (Mrs. Hazel); (c) Mr. Roberts' Legal Practitioner

Mr. Adrian Scantlebury and Ms. Petty and Mrs. Hazel concerning the differences between the terms and conditions of the previous offer of full-time employment, and the terms and conditions of the new offer of full-time employment. Neither party was willing to relent.

10 After a period of about seven months beyond the ‘probationary period’, and after the unwillingness of either party to relent from its/his respective positions, Mrs. Hazel informed Mr. Roberts by letter dated 31 ^st July 2014, that the FSRC's Board of Commissioners had decided to terminate his employment with the FSRC. The letter reads as follows:

“Dear Mr. Roberts

This letter serves as notice of the termination of your employment with the Financial Services Regulatory Commission effective 15 ^th September 2014.

By letter dated 12 ^th February 2014, the Commission submitted to you an offer of full-time employment which is based on the current employment policy of the organization. Since then, and despite several opportunities to do so, you have failed to accept and sign the letter of offer.

You commenced employment at the Financial Services Regulatory Commission on 2 ^nd September, 2013. In this regard, the Commission will grant you twenty-seven (27) working days of vacation leave. You are therefore advised to proceed on vacation leave beginning Wednesday August 6 ^th 2014. The twenty-seven (27) days vacation period will end on 11 ^th September 2014. However, to complete the thirty (30) days notice of your termination, you will be paid up to 16 ^th September 2014.

We wish you well in your future endeavours.

Yours sincerely

Hilary Hazel Chairperson”

‘cc: Director (Ag) Financial Services Regulatory Commission’

The Pleadings

11 Mr. Roberts thereafter commenced an action in the High Court by way of claim form and statement of claim both of which were subsequently amended.

12 The amended statement of claim filed on 29 ^th April 2016 outlines the terms of the employment of Mr. Roberts with the FSRC as contained in the July 2013 letter of offer/contract. It then goes on to state in essence:

1

That Mr. Roberts accepted the terms and signed the letter of offer. 2. That prior to the letter of offer of 12th July 2013, Mr. Roberts and Ms. Clarke, had entered into negotiations for the position; 3. That Ms. Clarke represented to Mr. Roberts (a) that the position offered was a senior position; (b) that all staff senior positions are full-time contractual positions of employment which attract a gratuity of 20% of the total annual base salary; (c) that a contract would be offered on condition that the claimant successfully completed the probationary period. 4. That it was on the basis of these alleged representations by Ms. Clarke that Mr. Roberts entered into the 12th July 2013 employment agreement. 5. That Mr. Roberts completed the probationary period on the 29th November 2013 and received a commendable appraisal from Ms. Clarke; 6. That on 29th November 2013, Mr. Roberts enquired of Ms. Petty if he was expected to continue reporting to work the following Monday and Ms. Petty told him yes, and she assured him that signing of a contract would be a formality; 7. That based on the assurance from Ms. Petty, Mr. Roberts continued under the employ of the FSRC for ‘about two and one half months without any other agreement being put in place which would have superseded the agreement entered into on 12th July 2013’. 8. That by letter dated 12th February 2014, the FSRC purported to offer Mr. Roberts full-time employment as at 1st December 2013, which letter was at variance with the terms set out in the 12th July 2013 letter of offer. 9. That by the...