Académique Documents
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BETWEEN
Respondent
APPEARANCES: Mr. Milton Evans, Ms. Joy Delancy and Mr. Dorsett for
the Appellant
Mr. Ferron Bethel and Ms. Camille Cleare for the
Respondent
an employment contract. The main issues revolve around questions as to whether the
appellant was employed under a written or an oral contract and whether he was
terminable on three months notice, if the written contract applied, or reasonable notice,
which in his case he says is 12 months notice, if the oral contract governed the
relationship between the parties. Subsidiary issues as to the identity of his employer and
2. It is common ground that the appellant was originally employed under a written
respondent in 1977.
employment until the day in December 1991 when the appellant was terminated that the
employment relationship between the parties was governed by that 1977 contract, which
was its standard form contract and which not only embodied the terms and conditions
of his employment but also spelt out who his employer was at all material times.
4. The appellant on the other hand contends that at some time in or about 1984
the 1977 contract with PIL was terminated and he entered into a new agreement with
Mr. Williams, a Vice president of the respondent, to work for another entity in the group
of companies of which the respondent is the parent company on different terms and
conditions of employment. His allegation is that a crucial difference between the 1977
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contract and the new oral contract is that the new contract did not make specific
provisions for termination of the contract on notice, which meant that it could only be
terminated on reasonable notice. In his case that meant, as was submitted on his
behalf, that if he was terminated as he was in December 1991, having regard to his
length of service and his seniority he was entitled to at least 12 months notice pay to
lawfully terminate his oral contract of employment. In contrast, the 1977 contract
provided that 3 months notice by either side could lawfully terminate the contract. And
so notwithstanding that the respondent was more generous in its final settlement than
the 1977 contract provided for (it gave roughly 7 months pay in lieu of notice), the
appellant was seeking a higher payment consonant with what he believed he was
entitled to under the alleged oral contract of 1984. Furthermore, the appellant gave
evidence that just prior to his termination in December 1991 he met with the same Mr.
Williams who agreed that upon termination the appellant would receive 12 months pay
in lieu of notice as reasonable notice pay to terminate his oral contract of employment.
5. The dividing line in this case was therefore clear. If the learned judge believed
the appellant that the 1977 contract was terminated and a new oral contract was
entered into in 1984 then it would follow that she would most likely rule in his favour. If
she on the other hand disbelieved him and /or accepted the case for the respondent the
6. This case therefore turned entirely on questions of fact. The learned judge who
had the opportunity to see and hear the witnesses did not believe the evidence of the
appellant and rejected his evidence and accepted as truthful the evidence of the
respondent. Having heard the evidence she concluded by finding as a fact that the
appellant did not change employer during his employment and that he did not enter into
a new agreement with any other entity of the group of companies of which the
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respondent is the parent and consequently in her opinion his contract of employment
was at all material times that which was made in 1977 with PIL.
7. Mr. Evans attacks the findings made by the learned judge and has invited us to
tribunal mindful of its duty to act judicially could on the material before it reach the
conclusions which the learned judge reached. (see John Hanna v Imperial Life [UKPC]
no. 61/05 delivered on 2nd May, 2007. That was an appeal from this court. This court
had interfered with findings of fact made by the lower court. At paragraphs 16-21 of the
judgment of the Board delivered by Lord Hope it says: (16) Two things are plain
from the Court of Appeals judgment. The first is that there was no challenge to
any of the evidence that was before Thompson J, which of course the Court of
Appeal did not hear. No mention is made of her findings, based on that evidence,
that all the equipment and premises that the appellant required to perform his
duties was provided by the respondent and that the respondent paid a portion of
his national insurance payments. But this is not because the court was of the
opinion that she was not entitled to make those findings. On the contrary, they
appear to have been left entirely out of account in the analysis. The second is
that the Court of Appeal approached the whole issue de novo. It appears to have
taken the view that it was open to it to substitute its own opinion for that arrived
at by the trial judge on her review of the evidence. (17) In Lee Ting Sang v Chung
Chi-Keung [1990] 2 AC 374 Lord Griffiths, delivering the judgment of the Board,
said at p 384E-385A that the question whether or not a person is employed under
a contract of service was often said to be a mixed question of fact and law. There
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dependent upon the true construction of a written document, it is regarded as a
question of law. But must be taken as firmly established that, where it had to be
decisions in the Court of Appeal and the House of Lords in which it had been held
that a finding by the trial judge that a person was, or was not, employed under a
contract of service was a question of fact with which an appellate court could only
interfere if there was no evidence to support his finding. (18) The question
which the Appeal Court should have asked itself, therefore, is whether there was
decision, in other words, one which no reasonable person acting judicially and
properly instructed as to the relevant law could have reached? The answer to that
question must be found by examining the whole of the material that was before
the trial judge. No single factor is likely to be conclusive. The fact that the
appellant was described as an agent in the written agreement will not prevent his
indicate. Conversely the fact that the contract was described in the termination
Mr McDonald does not on its own conclude the matter in the appellants favour.
(19) Approaching the question in this way, their Lordships consider that there was
ample material before Thompson J to entitle her to hold that the appellant was an
employee of the company, not an agent carrying on business his own account.
He was required by his agreement with the respondent to devote the whole of his
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time, apart from his vacation time, to the service of the company. All the
insurance payments was paid by the respondent, and he was given access to
retirement benefits that were available under the companys pension plan. It is
six employees he was himself an employee of the company. He was not required
to enter into a fresh agreement with the company during this period. This is a
strong pointer to the conclusion, when taken with the other evidence, that he was
was terminated. (20) It is true, as the judge recognised, that the word agent
was used throughout the written agreement. But the provisions in clause 8(ii) and
(vii) show that the appellant was not free to set his own standards of performance.
He was required to observe the rules and regulations laid down by the company.
The description of his duties in clause 2 shows that all his efforts were to be
directed full-time to serving the interests of the respondent. It was only in the
event of its not being prepared to grant the insurance which had been applied for
that he was free to submit the application to another company. The description of
his contract in the letter of 1 October 2005, while not determinative, is at least
consistent with the impression created by the facts as a whole that the appellant
was working throughout the period of his service not on his own account but as
the respondents employee. (21) Their Lordships will therefore humbly advise Her
Majesty that the appeal should be allowed and that the order which Thompson J
made on 17 February 2004 should be restored. The case will be remitted to the
Court of Appeal for determination of the second and third issues referred to in the
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respondents grounds of appeal to that court. The respondent must pay the costs
9. And so the questions must be asked: was there evidence to support the
findings made by the learned judge in this case? Was the finding one which no
reasonable tribunal mindful of its duty to act judicially and properly directed as to the
relevant law would reach on the evidence? The questions are posed differently but in
my judgment they are sides of the same coin. The point being that question of fact are
for the trial court and it is not for an appellate court to usurp that function and substitute
its view of the evidence. It is the trial judge who has seen and heard the witnesses and
who is best positioned to make determinations as to who to believe or not to believe and
what facts to find. The onus is on an appellant who wishes to overturn findings of fact
and to bring himself within these principles enunciated by the Privy Council and in my
(EAT)) Appellate courts do not lightly interfere with findings of fact made by a trial judge
who has had that advantage of seeing and hearing witnesses unless it can be
10. I cannot say on the material before us that there is no evidence to support
the findings made by the learned judge. Two points need to be made. First, the fact that
the appellant was the only person who gave evidence about the conversation he
allegedly had with Mr. Williams did not automatically mean that the learned judge was
obliged to accept his evidence that new agreements were entered into in 1984 and 1991
and that he was entitled to judgment. The respondent was entitled to challenge his
evidence as best they could. The judge could accept or reject as much of the evidence
of either party as she thought the circumstances warranted having regard to her
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assessment of the witnesses and the evidence adduced. That was her prerogative as
judge of the facts and the law. Second, one would have expected that either the
appellant or Mr. Williams would have documented some evidence relative to the
existence of the new contracts if that was indeed the case, particularly in view of the
high regard the appellant had for Mr. Williams efficiency. It was not until the appellant
was terminated that his attorney wrote claiming the existence of the new agreements.
And the 1984 contract allegedly contained a term to the effect that the appellants years
of service would continue even though he was alleging that he would thereafter be
11. What the learned judge had before her was the 1977 written contract which
spelt out the terms of the contract entered into in 1977 with PIL.There was no other
written document to vary or contradict that contract. Nor was there any evidence that
either the respondent or PIL knew of the existence of the new contracts. There was
undoubted evidence to support the case for the respondent that no new contract was
entered into and Mrs.Carey (Carey), the human Resources manager, testified that had
the terms of the appellants contract of employment been changed that that would have
been reflected on his file, which is where one would have expected to find any such
changes. Moreover, she said the 1977 contract was the standard form contract.
Furthermore, it was the same Mr. Williams who the appellant claimed that he had made
his agreements with in 1984 and 1991who not only signed the termination letter but in
that letter referenced the 1977 contract and in particular the provision for notice upon
termination. These are factors which militated against the existence of a new contract.
12. Mr. Evans made much of the finding by the learned judge that she preferred
the evidence of Carey to the appellant. He submitted that the real question was not
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whether she preferred her evidence to that of the appellant because Carey could not
give any evidence about the conversation the appellant had had with Mr. Williams. That
is undoubtedly true. However, the learned judge made it abundantly clear by her
findings of fact that on the whole of the evidence she did not believe the appellants
evidence that he had entered into a new agreement and had changed his employer. The
appellant had given other evidence which the learned judge found incredible. In so far
as credibility was a pivotal issue in this case the learned judge appears to have had
13. The learned judge not surprisingly concluded that there was nothing but the
appellants ipse dixit that he had entered into a new oral contract with Mr. Williams.
14. In his main ground of appeal, Mr. Evans has posited, that there was more
than the ipse dixit of the appellant and that there was material to support the appellants
case. He has submitted that there was ample documentary evidence to support an
inference that the appellants contract of 1977 had been terminated. I understood this
submission to be that when in 1984 the appellant changed his general managerial
employment with PIL made in 1977 must necessarily have come to an end because a
different entity, Island Hotel Ltd, owned that hotel. Implicit in this submission is the
suggestion that when the appellant went to work for the property owned by Island Hotel
Ltd, he must then have been working for that legal entity. This argument, however, runs
counter to his pleadings, where it is alleged that the respondent, Sun international, and
not Island Hotel Ltd. became the appellants new employer. And the evidence does not
establish that the respondent ever owned any of the entities where the appellant
worked. It was Mr. Bethels contention that the appellant was unable to say who his new
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employer was. Against the backdrop of the evidence that contention seems well
founded.
15. In my judgment there was a real basis on the evidence for the learned judge
to make the findings which are under attack. As Carey pointed out if there had been a
change to the appellants contract it should have been reflected on his personnel file,
particularly since the appellant had such high regard for Mr. Williams. How likely was it
that if there had indeed been a change in 1984 it would not have been noted on the
appellants file? If Williams had indeed agreed the new contract and had also agreed the
12 months notice pay shortly before the termination in December 1991 how likely is it
that he would not only have signed the termination letter but also referenced the 1977
contractual provision relating to notice pay and limited the payout to 7 months. It is a
matter of some significance that the judge found the appellants evidence on other
points incredible.
16. It seems to me therefore that it cannot be said that there was no basis on the
evidence for the judge to reach the conclusions which she made or that those finding
are so unreasonable that no court mindful of its duty to act judicially could reach those
conclusions and so they should be set aside. Significantly, Mr. Williams whom the
appellant claimed sanctioned the changes did not give evidence and was apparently not
subpoenaed. Why Mr. Williams was not called to give evidence was not satisfactorily
explained and in the circumstances I am of the opinion that no adverse inference can
now be drawn as no moment was made of it before the learned judge. Indeed had he
given evidence we might not be here today, and that cuts both ways. In these
circumstances it seems to me the learned judge having seen and heard the witnesses
could properly reach the conclusions which she did. That was the only reasonable
conclusion to reach on the evidence, given that he who alleges must prove.
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17. Mr. Evans has also referred to the corporate structure of the respondent and
contended that the learned judge should have embarked on an enquiry to at least
determined that the correct defendant was before the court. On its face this would seem
to be an attractive argument. This however was not a case of the type as Brace v Calder
[1895] 2 Q.B 253 or Noakes v Doncaster Amalgamated Collieries [1940] A.C 1014 or
employee. And no such allegation has been made. The crucial questions in this case
were who the appellants employer was and had his terms of employment changed from
the 1977 contract. More specifically, and having regard to the pleadings was the
respondent the appellants employer. The Respondent denied that it was the appellants
employer. These were questions of fact which on the evidence before the court it could
make a determination. It mattered not what the corporate structure was. It was clear that
he had worked as General Manager of Brittania Hotel when it was in fact owned by a
different entity from the other party to his 1977 contract. The fact that one entity may
have owned the property and another operated the facility did not violate any company
law principle or was unknown in the industry, particularly in the case of a conglomerate.
Nor did it necessarily follow as Mr. Evans submitted that one could infer from the change
of property where the appellant worked i.e. from Brittania to Paradise Island Tower that
his existing contract of employment came to and end and the owner of the property
where he then worked became his new employer under a new oral contract of
employer on the finding of the learned judge at all material times was PIL and no one
else.
18. In his first set of skeleton arguments Mr. Evans, in an effort to support his
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the transcript. However, the letter he refers to seems to be the letter of dismissal of
December 1991, which could not assist the case for the appellant. If it was some other
letter it was the appellants own attorney who despite the urging of the judge did not
seek to exhibit the document. Judges say repeatedly that they do not tell counsel how to
run or conduct their cases. Counsel must have had her own reasons for not exhibiting a
document which was alleged to be crucial to the case for the appellant. And the only
way for the appellant to take of advantage of that is by alleging that the case was
incompetently or negligently handled by the his attorney, which he has not done. To my
19. The final ground of appeal relates to a claim for a bonus. The appellant put no
evidence before the court to support his entitlement to a bonus. This was against the
background that Carey alleged that the company had not made its bonus targets for
senior employees. It seems to me that if the appellant wanted to make such a claim and
to refute the evidence he could easily have sought discovery, which was apparently not
done.
20. I have reviewed the grounds of appeal and I can find no merit in any of
them.
21. In the circumstances I would dismiss the appeal with costs to the respondent to be
_____
The Hon. Mr. Justice Longley, J.A
I agree
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____________________________
The Rt. Hon. Dame Sawyer, P.
I also agree
_______________________________
The Hon. Mr. Justice Blackman, JA.
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