Steer v Caribbewan Sailing Yachts

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 27 July 1988
• Neutral Citation: VG 1988 HC 1
• Docket Number: No. 103 of 1986
• Date: 27 July 1988

High Court

Judge (s): Bertrand, J.

No. 103 of 1986

Steer

and

Caribbewan Sailing Yachts

Appearances:

Mr. Archibald, Q.C. with Mrs. Creque for Plaintiff

Mr. Webster with Mr. O'Neal for Defendants

Contract - Claim under an agreement for severance pay, cost of living allowance and vacation pay — Evidence indicated that there was an agreement to pay severance — Calculation of claims — Quantum awarded.

Bertrand, J.

1 This is a claim under an agreement between the parties for severance pay, cost of living allowance and vacation pay. The Plaintiff claimed that he was paid $6 000.00 under the agreement for $10,000.00 severance pay, leaving a balance of $4,000.00. He also claimed $1,144.00 cost of living allowance for the month of July, 1985 and a sum of $650.00 for one week's vacation pay plus interest on the above. In the alternative the Plaintiff claimed damages for breach of contract, special damages of $5,744.50, plus interest and costs.

2 The Plaintiff gave evidence in support of his claim. But no one gave evidence on behalf of the Defendant. In the defence the Defendant admitted the agreement to pay severance pay, but denied the claim for cost of living allowance and vacation pay. The defence further contended that the payment for severance pay was varied and that the Plaintiff was not entitled to the payment of $4,000.00 they counterclaimed for personal overseas telephone calls, proceeds of an airline ticket from Tortola to London, cost of services supplied, taxes and social security payments, an amount for vape bombs, proceeds of a cheque, and a boat engine, all to the value of $3,568.49.

3 The Plaintiff in his reply admitted the counterclaim of the PAYE and Social Security $874.68, and also the sum of $405.00 for the vape bombs.

4 Before evidence was taken Counsel for the Defendant agreed to the admission by Counsel for the Plaintiff of $195.64 for overseas telephone calls made by the Plaintiff and withdrew the balance of the claim of $149.17. Counsel also withdrew in its entirety the claim for the airline ticket, and amended the amount of item 1 in the particulars of special damages to read $195.64 instead of $1 119.81 Paragraph 12(a) of Defence and counterclaim was also amended by deleting the figures $344.81 and substituting therefore the figures, $195.64.

5 During the course of the trial Counsel for the Plaintiff admitted to the amount of $700.00 for the 150 HP Johnson outboard motor boat engine from the amount of $995.00 claimed by the Defendant. This, Counsel for the Defendant agreed to, and abandoned the balance of the claim of $295.00. the counterclaim of the Defendant therefore totaled $2 349.32 instead of $3,568.49. Of that amount Counsel for the Plaintiff admitted an amount of $2,175.32 of the Defendant's counterclaim, leaving the issue of $174.00 of the special damages the proceeds of a cheque, paragraph 15 of the Defendant's defence, to be tried.

6 The Plaintiff Steven Steer worked for the Defendant Company as a yacht chartered from January, 1980 to October, 1982. He became General Manager in 1982. He was hired by one Van Ost, the owner of the Defendant company, as the operation manager. The Company is based in Tortola. One Rick Taylor was the Vice President of the company.

7 It was in July, 1985 the Plaintiff said, that the company decided to fire him. He had discussions with Rick Taylor as to terms of the termination of his services. He said Taylor offered him $10,000.00 severance pay. As General Manager the Plaintiff received a salary of $38,000.00 p.a. with his COLA, use of a company vehicle and overseas airfares for himself, wife and two children.

8 In July 1985 the Plaintiff was replaced as General Manager by one Bentley who worked for only twelve days. He was fired by Taylor. During those twelve days the Plaintiff was handing over and assisting Bentley. Upon Taylor's request the Plaintiff took over again from Bentley as General Manager. He remained in that position until September, 1985 when he was replaced by one Matthews, and the Plaintiff became Operations Manager. He served as such from September to October, 1985 and then the company, since his position became untenable.

9 The Plaintiff said, as General Manager he was getting $1,000.00 p.m. for COLA.

10 There has been no contrary evidence that the Plaintiff worked alongside Bentley when he took over as General Manager for the twelve days, and then when Bentley was fired, the Plaintiff was asked to remain working for the company until someone else could replace Bentley, and he did. The Plaintiff's evidence is that he did not get paid for the month of July until the 23 ^rd August, 1985 and that was only basic pay. The COLA was not paid. There is no direct evidence as to the salary which the Plaintiff received for the month of July, 1985. But he stated in his evidence that the COLA agreed upon to be paid by Taylor was $1,144.00 and this was calculated at 50% of his original salary of $38,000.00 p.a. for period 1 ^st — 15 ^th July, 1985 and 50% of $32,000.00 p.a. for period 16 ^th — 31 July, 1985. How the Plaintiff arrived at this figure I am not able to say. But suffice it to say his figure is less than what I calculated it to be. However, his evidence is that the figure of $1,144.00 is what was agreed upon between himself and Taylor. In the absence of any contrary evidence the court accepts that this is so. It would only be reasonable to assume that he would have been paid COLA for the month of July if he received it every month before July, there is no reason to disbelieve him, and I believe Taylor agreed to pay him COLA for July, 1985 amounting to $1,144.00.

11 In paragraph 7 of the Plaintiff's statement of claim the Plaintiff is claiming $600.50 for one week's vacation pay. He claimed the Defendant agreed to pay him $1,201.00 for two week's vacation pay but he only received one week's vacation pay i.e. $600.50. He is therefore owed $600.50. His evidence however gives a completely different picture. The Plaintiff said he was due four weeks vacation. That the amount of $1,801.00 which he was paid represented three weeks vacation pay and that the company owed him one more week vacation pay. Be that as it may the Plaintiff claimed $600.50 out of two weeks vacation pay due him. But he has received more that what he claims. In the circumstances the court is not at all convinced that the Defendant company...