MC Monnies v B.v.I. Development Company Ltd

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Glasgow, J.
• Judgment Date: 05 December 1969
• Neutral Citation: VG 1969 HC 2
• Date: 05 December 1969

High Court

Glasgow, J.

Mc Monnies

and

B.V.I. Development Company Ltd.

Appearances:

J.S. Archibald for Plaintiff

F.C. Adams and E.A.C. Hewlett for Defendant.

Damages - Wrongful dismissal — Allegation that plaintiff was neglectful in performance of his duties and was engaged in other business while in employ of defendant company not proved — Judgment for plaintiff in sum of $2,488.

1 Glasgow, J. The Plaintiff's claim against the Defendant Company is for damages for alleged wrongful dismissal from his post of General Foreman in the employment of B.V.I. Development Company Limited in Tortola in the British Virgin Islands on the 15th day of January 1969, and for loss of salary and loss of the benefits of bonus, paid holiday and paid air fare to the United Kingdom.

2 In its defence, the Defendant Company alleged that in the course of his employment under a written service agreement made between the Defendant Company and the Plaintiff and before the alleged wrongful determination the Plaintiff misconducted himself-

• (a) by being habitually neglectful in the performance of his duties,

• (b) by failing to perform the duties of a general Foreman, faithfully and diligently

• (c) by engaging directly and/or indirectly in business or other occupation while still engaged in the service of the Defendant Company.

3 The Defendant Company stated that by reason of the premises it discharged the Plaintiff on the 14th January 1969 from the said employment in accordance with clause 6 (7) of the said agreement.

4 The Defendant Company counterclaimed against the Plaintiff for (a) damages (b) an injunction to restrain the Plaintiff from engaging in any form of employment in the Territory of the British Virgin Islands for a period of two years, and (c) costs.

5 On or about the 28th March, 1968, in England the Plaintiff and the Defendant Company entered info a service agreement in writing whereby the Defendant Company agreed to employ the Plaintiff and the Plaintiff agreed to serve the Defendant Company for the period and upon and subject to the terms and conditions therein mentioned. Clause 2 (4) of the said agreement required the Plaintiff “at all times either by day or night (including Sundays if necessary) as the Company may from time to time reasonably require faithfully and diligently to perform the duties of a General Foreman or such other duties as the Company shall from time to time require either in the Company's immediate service or in the service of any other company in the British Virgin Islands.”

6 The Plaintiff arrived at Beef Island Airport on the 3rd April, 1968, and was met there by Mr. Thomas George Smith, Managing Director of the Defendant Company, and Mr. Edward Pearce. The Plaintiff arrived in Tortola and started work there, on the same day. Clause 5 of the said agreement provided that the Plaintiff's employment thereunder “shall (subject as hereinafter mentioned) continue for a period of twelve (12) months from the date of his arrival at Tortola aforesaid.”

Clause 9 and 10 of the agreement are in the following terms:

“9. If at the end of the twelve month term of employment referred to in clause 5 hereof the General Foreman wishes to continue his employment by the Company for a further twelve month term on the same conditions as are contained in this agreement apart from this clause and the General Foreman gives to the Company one months written notice of his desire so to do prior to the termination of the first twelve month term then the General Foreman's engagement shall continue for a further period of twelve months after the conclusion of his holiday as provided in clause nine hereof.

10. At the conclusion of the twelve month term of employment referred to in clause 5 hereof the General Foreman shall be entitled to two months paid holiday and in the event of the General. Foreman exercising the option referred to in clause 9 hereof and not wishing to take his holiday in the United Kingdom he will be paid an additional sum of money equivalent to the return air fare to the United Kingdom,”

7 At the commencement of his employment the Plaintiff was paid £208.6.8 ($500.00) per month salary in accordance with clause 3 of the agreement. At the end of May or beginning of June, 1968 the Plaintiff's salary was increased to $720.00 per month. Provision for an increase in the Plaintiff's wages is to be found in the proviso to clause 3 of the agreement.

8 The Plaintiff is and was at all material times well qualified in experience and otherwise for the post of General Foreman which he held. He is a member of the London Builders Foreman's Association and a full member of the London Association of Construction Site Managers. With the exception of three years which he spent in the Armed Forces, the Plaintiff worked with the firm of Brentwood Building and Civil Engineering Contractors in England continuously from 1932 to April, 1968 when he left for the British Virgin Islands. The Plaintiff held the post of General Foreman in that Company.

9 On the 12th December, 1968 Mr. Smith the Managing Director of the Defendant Company left Tortola and went to London. Up to the time of Mr. Smith's departure for London no complaints had been made about the Plaintiff's conduct or work. On the eve of his departure, Mr. Smith told the Plaintiff that there would be a party, and that he (the Plaintiff) would receive a Christmas box. Mr. Smith also wished the Plaintiff a very happy Christmas. At Christmas, 1968 the Plaintiff received the promised Christmas box - $225.00 - from one Mr. Clemesha, Mr. Smith's personal assistant, on behalf of Mr. Smith. On 22nd December, 1968 the Plaintiff received his salary of $720.00 for December, 1968. The Plaintiff informed Mr. Clemesha that he intended to purchase a Land Rover which had been imported by the Defendant Company and a lorry which belonged to Eric Hughes. Eric Hughes is an Antiguan who was at that time employed by the Defendant Company as an assistant General Foreman. Clemesha asked the Plaintiff to call at the office as he intended to speak with Mr. Smith on the phone and wanted the Plaintiff to be present. Clemesha called Mr. Smith in...