Claude Leach Claimant v The Development Corporation of Saint Vincent and The Grenadines 1st Defendant Attorney General 2nd Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Thom, J |
| Judgment Date | 29 January 2007 |
| Judgment citation (vLex) | [2007] ECSC J0129-5 |
| Court | High Court (Saint Vincent) |
| Docket Number | HIGH COURT CIVIL CLAIM NO. 46 OF 2002 |
| Date | 29 January 2007 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL CLAIM NO. 46 OF 2002
The Claimant was employed as General Manager of the First Defendant. On May 31, 2001 the Claimant's employment was terminated with immediate effect and the Claimant was advised by the First Defendant by its letter dated May 31, 2001 that he would be informed of his benefits when advice was received from the appropriate authorities. The First Defendant subsequently paid the Claimant the sum of thirty-seven thousand, six hundred and thirty one dollars and eighty-seven cents ($37,631.87) being thirty-three thousand, three hundred and thirty-six dollars ($33,336.00) for severance payment, Sixteen thousand, six hundred and forty nine dollars and twenty-five cents forthree months pay in lieu of notice less National Insurance Scheme (NIS) deductions, and the First Defendant deducted a sum of twelve thousand, three hundred and fifty-three dollars and thirty-eight cents ($12,353.38) for advances made to the claimant during the period 1996–2001 and which were not retired by the Claimant.
The Claimant being dissatisfied with the payment made by the First Defendant instituted these proceedings in which the Claimant sought payment of the following sums:
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(a) holiday pay for 291.5 days = $54,004.32
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(b) housing allowance of $250.00 per month for three months = $750.00
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(c) telephone allowance of $50.00 per month for three months = $150.00
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(d) wrongful deduction of sum paid as advance to the Claimant = $12,353.00
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(e) out of pocket expenses = $2,285.57
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(f) 100 watts phase line = $604.73 (e) Speaker = $45.00
By Act of Parliament No. 4 of 2003 the First Defendant was dissolved. On the 18th day of June 2004 an order was made joining the Second Defendant, the Attorney General as a party to this claim.
The Claimant testified on his own behalf, no witnesses were called. No witnesses testified on behalf of the Second Defendant.
The Claimant testified that he was employed as the General Manager of the First Defendant from the 19th day of January, 1987 to the 31st day of May, 2001. The terms of his employment were outlined in a written contract between himself and the First Defendant dated 19th day January, 1987. In August 1992 the terms of his employment were modified as outlined in the letter from the Claimant of the First Defendant dated 6th day of August, 1992. The Claimant further testified that during the period of his employment he seldom took vacation. He would sometimes take a "holiday or two" during business trips. When his employment was terminated on May 31st, 2001 he was not paid holiday pay for vacation which was not taken during his employment and which amounted to 291.5 days, housing allowance for three months being the period of notice that he was entitled to receive pursuant to the terms of his employment, telephone allowance for three months for the said period. He was also not paid for items he purchased for the First Defendant and for expenses incurred while traveling overseas on behalf of the First Defendant. He also purchased a Phase Linear and a Speaker which he installed the First Defendant's vehicle which he used while employed as General Manager. The Phase Linear and Speaker were not returned to him. The Claimant further testified that the sum withheld for advances not retired was wrongfully withheld since he had accounted for those sums in a letter to the First Defendant dated July 18. 2001 and he attached the original receipts.
Under cross examination the Claimant agreed that there was considerable delay in accounting for the advances. He explained it was due to his inadvertence. The Claimant also agreed under cross examination that he was inadvertent in his record keeping and explained this was due to him being very busy in the discharge of his duties as General Manager.
The issue for determination is whether the Claimant is entitled to be paid the sums claimed.
Both the Claimant and the Second Defendant agree that the terms of employment of the Claimant with the First Defendant are outlined in the contract dated January 19th, 1987 and the letter dated August 6, 1992.
The Claimant in his Claim Form alleged that he is entitled to payment of holiday pay in the sum of fifty four thousand and four dollars and thirty-two cents ($54,004.32) being 291.5 days or 9.72 months salary at the rate of $4,725.83. However in his evidence he stated that the sum owed to him for holiday pay was forty five thousand, nine hundred and thirty five dollars and seven cents ($45,935.07) being 291.5 days or 9.72 months at a salary offour thousand, seven hundred and twenty five dollars and eighty three cents ($4,725.83) per month. This latter calculation is correct. This holiday accrued over the period 1987 -2001.
Learned Counsel for the Second Defendant submitted that the Claimant is not entitled to payment on termination of his employment for holiday not taken during the period of employment for the following reasons.
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(a) the Claimant's employment contract did not provide for automatic payment in lieu of accrued holiday on termination.
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(b) The Claimant's employment contract did not provide for yearly "Roll-Over" of accrued holidays.
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(c) The Claimant has not produced evidence to show that he is owed any pay for allegedly accrued holidays.
I will deal first with the third submission by Learned Counsel for the Second Defendant, than the second submission and I will deal with the first submission last. I have adopted this approach since if there is no credible evidence of accrued holiday then there will be no need to consider the first and second submissions.
Did the Claimant during the period 1987 to 2001 fail to utilize 291.5 days of his vacation leave?
The onus was on the Claimant to prove that he did not utilize 291.5 days of vacation leave due to him while he was employed by the First Defendant.
The Claimant in his witness statement which was admitted into evidence as evidence in Chief stated in paragraphs 6(ii) and 6 (iii)
"6(ii) ………….. To take holiday required the approval of the Board of the Defendant Corporation and whether they approved or not depended on the volume and urgency of business. For the Defendant I was like a workaholic substantially because of the absence of qualified and experienced staff.
6(iii) Of the years I spent at the Defendant Corporation I seldom traveled for personal reasons or to take holidays only. I would go on business trips and take a holiday or two in between. That was the nature of my job. It happened even when I left the State for Christmas. Indeed whenever I was out of the State the entire staff at the Corporation knew where I was going and the purpose of my traveling because I had to let them know who would be in charge during my absence."
Under cross-examination the Claimant agreed that he did not provide to the court any documentary evidence of consultation with the First Defendant or consent of the First Defendant for vacation leave. The Claimant also agreed that he did not provide to the court any document showing the First Defendant found it impracticable to approve his holidays. The Claimant explained that his request for holidays would have been placed in the General Manager's file. He would have discussed his request with the Chairman of the Board of the Corporation. He would take directions from him. Very often the problem was one of shortage of managerial staff in the Corporation.
The Claimant produced a chart showing the number of days taken during each year of his employment with the First Defendant. He explained it was a copy of the record left in the First Defendant's file. Under cross-examination the Claimant could not recall the specific dates when he took vacation and explained that it would be in the First Defendant's File.
The provisions of the Claimant's terms of employment dealing with vacation leave are clause 4 of the January 19, 1987 and paragraph 4 of the letter of August 6, 1992. Clause 4 reads:
"The General Manager shall be entitled to thirty (30) working days vacation in each year of the contractual period but such vacation shall not be taken without the prior consultation and consent of the Corporation having regard to the demands of business at the time that the General Manager requests his vacation."
While paragraph 4 of the August 6, 1992 letter reads:
You will be entitled to thirty (30) working days vacation for every year of your employment. This must be taken at a time mutually convenient to you and the Corporation. Where the Corporation finds it impracticable to approve your holidays, having regard to the demand of its business it may, with your concurrence, decide to pay you for the same. You will also be paid for such vacation to which you were previously entitled but could not take owing to the business demands of your office.
The Claimant's case is that he did not utilize all of the vacation leave due to him during the period of his employment due to the exigencies of the business of the First Defendant and the shortage of managerial staff. There was an outstanding amount of 291.5 days at the time of termination of his employment. Learned Counsel of the Claimant submitted that the evidence addressed by the Claimant was not credible.
Having seen and heard the Claimant testify I believe the testimony of the Claimant. I found him to be a credible witness. The Claimant's evidence was not contradicted. Indeed paragraph 4 of the letter of August 6, 1992 from the Chairman of the Board the First Defendant acknowledged that the Claimant had not utilised all of his vacation leave prior to...
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