Didier v Fitzpatrick

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 22 March 1977
• Neutral Citation: VG 1977 HC 1
• Docket Number: No. 36 of 1976
• Date: 22 March 1977

High Court

Hewlett, J

No. 36 of 1976

Didier

and

Fitzpatrick

Appearances:

McW. Todman for the plaintiff

Riegels for the defendant

Industrial Law - Contract of employment — Notice of dismissal

Facts: Whether notice of dismissal was reasonable, s.9(3)(c) of the British Virgin Islands Labour Code provided that “in no case need the period of said advance notice exceed 30 days unless an employment contract calls for a longer period of notice”. The defendant gave the plaintiff one month. The plaintiff had worked for the defendants for over 7 years.

Held: Section 9(3)(c) covered both expressed and implied terms of an employment contract and in the circumstances it was correct to imply that the notice would be reasonable. In the circumstance the plaintiff was entitled to pay in lieu of 4 months notice.

Hewlett, J.

1 In this case the plaintiff claims damages for wrongful dismissal and for breach of the defendants' statutory duty not to dismiss without just cause. The defendant on the other hand contends that the plaintiff became redundant in their service and was therefore not unfairly dismissed.

2 The plaintiff is a native of Dominica and a non-belonger of the British Virgin Islands. She was first employed by one Stephen Dickinson, a chartered accountant operating in Tortola, in August 1969. It appears that Stephen Dickinson later amalgamated with Messrs. Rawlinson and Hunter and the firm then became known as Dickinson Rawlinson and Hunter. On 1st October 1973 there was a merger of the firm with Pannell FitzPatrick and Company and the combination assumed the name and style of Pannell FitzPatrick and Company. During these amalgamations the plaintiff was continuously employed without a break in her service. There never was in fact any termination of employment and a re-employment.

3 Her contract of employment was oral. It was a general hiring and for no definite period and it is admitted that there was no express stipulation concerning notice of termination. She was referred to as the Head Secretary as far back as 16th August, 1974 in a letter sent to the United States Embassy by the then Manager of the defendant firm, himself a partner thereof, and her duties were therein expressed to include the training of junior secretarial staff on a continuing basis. I set out the text of the letter:

“PANNELL FITZPATRICK & CO.	PANNELL KERR FORSTER COMPANY
CHARTERED ACCOUNTANTS	INTERNATIONAL FIRM

(INCORPORATING DICKINSON, RAWLINSON AND HUNTER)

TO WHOM IT MAY CONCERN

MISS ANGELA DIDIER

Miss Angela Didier is a native of Dominica employed by this firm and occupied the position as Head Secretary with the predecessor firm of Dickinson, Rawlinson and Hunter from 1969. Miss Didier's duties include the training of junior secretarial staff and this programme is on a continuing basis.

Miss Didier travels extensively and it would be an easement if she could be issued with a non-immigrant visa.

We have found Miss Didier to be of good and stable character.

(Sgd.) Robin F. Gaul

16th August 1974 Robin F. Gaul”

4 Over the years from 1970 through June 1976, the plaintiff worked a 5-day week (Monday to Friday) and received one month paid vacation leave annually. She says these were agreed terms of her employment and their long establishment lends support to her testimony. In any event, I found her to be an honest and forthright witness and she has been admitted to be a most competent and reliable secretary, and in my opinion these qualities go hand in hand. It has nowhere been even suggested that she ever misconducted herself to any of the partners in the defendant firm.

5 In the normal course of things, the plaintiff went on her leave in 1976, but on the 20th April 1976 soon after her return from leave, one Noel Barton the senior partner in the defendant firm handed her a letter dated 29th July 1975 wherein was set out particulars of her duties, hours of work, working days and annual leave. It reads:-

29 ^th July 1975

“Miss A. Dither

C/o P.O. Box 438

Road Town

Tortola.

Dear Angela,

In accordance with the requirements of the Labour Code, we write to confirm that you are employed in this firm as a Secretary. You are responsible for the secretarial affairs of companies and you also assist the partners in general office duties in any manner which will further the work of the firm.

The office hours are from 8:30 a.m. to 4:30 p.m. from Monday to Friday with a break of one hour for lunch, and from 9 a.m. until 12 p.m. on Saturday, making a total of 38 hours per weeks in practice, we shall endeavour not to call upon you to work on Saturday mornings except where professional requirements make it essential.

Your present salary is at the rate of $625 per month and you are entitled to eighteen (18) days paid vacation leave in each year.

We trust that the formalities imposed upon us by the Code will in no way impair the atmosphere of friendly informality, flexibility and mutual helpfulness which has always existed in this office.

Yours sincerely

(Sgd.) Noel Barton

Noel Baxton.”

6 It is important to note that Barton testified that that letter wag in fact prepared in July 1975 but only typed in April 1976. May not this be an indication that the firm was having second thoughts in the matter? If however it had been the declared new policy decision of the firm in 1975, one is left to wonder who approved the plaintiff's leave for one month in 1976. And since this leave must have been approved after the policy decision, the waiver can only confirm that the defendants were aware that there existed this term, albeit unwritten, in the plaintiff's contract of employment. I am therefore satisfied on a balance of probabilities that the plaintiff's testimony that her contract included the 5-day working week and one month paid annual leave is to be preferred.

7 This letter gave rise to further correspondence because the plaintiff after discussing it with her boss was obliged to consult her solicitor who then sent off a letter dated 23rd April 1976 setting out the history of the plaintiff's employment and seeking confirmation that the plaintiff's terms of employment included the 5-day working week and the one month paid annual leave. There was a reply from the defendants dated 28th April 1976, and a further letter from the solicitor dated 4th May 1976, but up to then the matter remained unresolved. The final letter came on the 25th June 1976...