Nelson v West Indies Yacht Charters Ltd

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, J
• Judgment Date: 02 June 1983
• Neutral Citation: VG 1983 HC 2
• Docket Number: No. 53 of 1980
• Date: 02 June 1983

High Court of Justice

Joseph, J

No. 53 of 1980

Nelson

and

West Indies Yacht Charters Ltd.

Appearances:-

Mr. J.S. Archibald, Q.C. with him Mr. Farara for plaintiff.

Mr. McW. Todman, Q.C. with him Mr. Webster for defendant.

Industrial Law - Contract of Service — Termination — Unfair Dismissal

Facts: Plaintiff employed by defendant as fleet maintenance manager. Plaintiff recruited in Florida and passage for him and his wife paid by the defendant. Benefits to plaintiff included free accommodation on a yacht controlled by the defendant. Plaintiff wished to buy his own yacht. Terms agreed between parties were that the plaintiff would pay maintenance, repair haul out and replacement costs. Additional volvo part needed. Plaintiff purchased engine and transmission from defendant company. Plaintiff took delivery of combination although he observed that the transmission was not the one he had bought. Plaintiff installed transmission in his yacht, discovered it was not working properly there, had transmission removed from other yacht and installed in his yacht.

Held: The situation was governed by Labour Code c.57, 58. The plaintiff misconducted himself. The misconduct was serious enough to demonstrate that the employment could not reasonably be expected to continue.

Joseph, J

1 The plaintiff's claim against the defendant company is for damages for alleged wrongful dismissal from his post of Fleet Maintenance Manager in the employment of the West Indies Yacht Charters Ltd: for loss of salary and of the benefits of bonus: paid holiday: wholesale prices on food stuffs: free ice and water: paid air faxes for himself and family to the United States on termination of employment.

2 During the trial the statement of claim was amended to include claims for loss on forced sale of two motor cars and expenses incurred in sending of the plaintiff's yacht to Florida, United States of America.

3 The defendant company, admitted terminating the plaintiff's employment, but pleaded that the plaintiff's employment was lawfully terminated in view of the circumstances including misconduct of the plaintiff within the meaning of the Labour Code.

4 The defendant company counterclaimed for the value of certain goods bought from the defendant company by the plaintiff and not paid for: the cost of overseas telephone calls made by the plaintiff and the cost of labour, that is, the use of the defendant's employees by the plaintiff for his own purpose during working hours.

5 In opening the case for the plaintiff, learned counsel indicated that the plaintiff admitted that he owed the defendant for the undermentioned items set out in paragraphs 14 and 15 of the defendant company's counterclaim –

Under paragraph 1	(a) Safety Netting	$ 280.00
	(b) Heavy Duty Battery	135.25
	(c) Oven 85007	406.62
	(d) Mariner 2B Outboard	235.00
	(e) Anchor	75.00
	(g) Dinghies (2)	400.00
Under paragraph 15	(b) Purchases from stockroom	322.10
	(c) Purchases from commissary	544.92
		$2,398.89

6 Around September 1979 the plaintiff, in response to a job application he had sent to the defendant company, was interviewed in Fort Lauderdale, South Florida, United States of America, by Paul Funkhouser, Managing Director of the defendant company. The plaintiff's wife, Irene Nelson, was present at this interview during which the plaintiff was offered an appointment with the defendant company in Tortola. The post was that of Chief Mechanic with the prospect of almost immediate promotion to the post of Fleet Maintenance Manager.

7 At the time the interview took place the plaintiff was desirous of coming to the Caribbean to live and work as his business venture was not very successful. The defendant was anxious to obtain the services of the plaintiff as he anticipated that the incumbent of the post of Fleet Maintenance Manager would be resigning from the defendant company and that about six other employees would also leave about the same time.

8 Mr. Funkhouser admitted that he told this to the plaintiff. Mr. Funkhouser told the plaintiff there was a strict Labour Code and that a work permit would be required and terms and conditions were discussed.

9 The plaintiff and his wife paid a familiarisation visit to Tortola at the defendant company's expense: were impressed with what they saw and returned to the United States where they disposed of their home and the plaintiff's business, Nordic Marina Inc.

10 In October 1979, the plaintiff assumed the appointment of Chief Mechanic of the defendant company's Charter Fleet at Maya Cove, and was provided with temporary accommodation pending the preparation of a yacht. Between October to November the yacht Circe was made available and the plaintiff and his family moved to the yacht to live.

11 The plaintiff was paid salary and received benefits of food at wholesale prices from the defendant company's commissary: received a bonus every month from October 1,979 up to the date his employment was terminated.

12 In December 1979, the plaintiff was promoted to the post of Fleet Maintenance Manager and received salary at the rate of $19,200 per annum: the benefit of free ice and subsequently the benefit of free water.

13 In November 1979 the plaintiff bought a yacht which he named the Erik Anders from Dr. Cantrell and Dr. Nicholson with the defendant company in the person of Mr. Funkhouser acting as negotiator, and signed two documents: a Yacht Lease agreement and an Escrow agreement.

14 At the time of the purchase the engine of the yacht was on the dock and the plaintiff placed orders for volvo parts for the engine with the defendant company and worked on the engine to make it operable.

15 On the 1st November 1979, Nelson Fry, known as Skip Fry, and his wife joined the defendant company as Co-General Managers.

16 In January 1980 the plaintiff's salary was increased to $21,600 per annum, and during this month he made overseas calls to United States of America at the defendant company's expense.

17 In February 1980, the plaintiff sent his wife and children to his wife's family's home in Wisconsin where they spent three weeks, returning to Tortola on the 27th February.

18 Mr. Fry said that about the time the plaintiff went to live on his yacht their relationship was cordial and that between January to March 1981 although they had differences concerning a number of matters, the manner in which the plaintiff was managing his part of the operation was adequate.

19 However towards the end of March 1980, he stated that the usage of company parts and supplies were becoming a problem. In addition he said he was concerned about the image the plaintiff was portraying to the staff so he started a file to document the plaintiff's conduct.

20 Mr. Fry discussed these differences with the plaintiff and followed up the discussions with two letters -one dated 1st April, 1980, the other dated 28th April, 1980.

21 In June 1980 Mr. Fry held periodic meetings with the plaintiff as he (Mr. Fry) stated that he was getting a lot of pressure from Mr. Funkhouzser to ensure that the plaintiff pay for the volvo parts that the plaintiff had ordered. In June 1980, the plaintiff purchased from the defendant company a Perkins engine and transmission for the Erik Anders.

22 On 26th June 1980 Mr. Fry saw a Perkins transmission on the dock of the maintenance base near to the yacht, Southern Star, and learnt from the plaintiff that he was putting the transmission from the Southern Star into the Erik Anders as that transmission was the one he had bought from the defendant company. I shall be dealing with this in more detail later on in the judgment.

23 On June 27th 1980 the plaintiff received a letter from Mr. Fry requesting him to resign. He did not comply with that request, and on July 4th he received another letter from Mr. Fry terminating his services with effect from June 27th 1980. He was paid salary up to June 26th.

24 The plaintiff received a letter dated July 1st 1980, from Mr. Funkhouser referring to the yacht lease agreement which, provided for the plaintiff to pay all maintenance, repair and replacement costs to the yacht and stating that he found it incomprehensible that the plaintiff should jeopardize his working position because of the matter of non payment for the volvo parts.

25 Between July 4th and July 17th negotiations were held between Mr. Fry, the plaintiff and the Labour Commissioner with a view to arriving at a settlement, but without success.

26 The plaintiff tried unsuccessfully to obtain employment in Tortola. He therefore sold for $2,000 two Mercedes cars he had bought nine months previously for $3,000, paid a captain and crew $3,000 to take the Erik Anders to the United States and left Tortola on July 29th.

27 On arrival in the States he made several applications for jobs and attended a number of interviews. On receiving no offer of employment he borrowed money from a bank and in September 1980 bought a number of businesses.

Terms and Conditions of Employment

28 The plaintiff's contract of employment was an oral one: not stated to be for a specified term and there was no agreement concerning notice for termination of employment.

29 The plaintiff and his wife stated that Mr. Funkbouser told them that he would pay the plaintiff enough money to enable him to bank $1,000 per month that their expenses would not be more than $1400 per month. Mr. Funkhouser denied saying this. I believe that what Mr. Funkhouser told the plaintiff and his wife was that their living expenses ought not to exceed $400 per month and that they should be able to bank $1,000 per month. However, both the plaintiff and the defendant admit that the salary agreed an was $16,800 per annum payable monthly, that is,$1,400 per month.

30 There is no dispute that the plaintiff was to receive...