COMMONWEALTH OF THE BAHAMAS

IN THE COUR T OF APPEAL

SCCivApp. No. 24 of 2007

BETWEEN

HARVEY DON COOKE

Appellant
AND
SUN INTERNATIONAL LTD

Respondent

BEFORE: The Rt. Hon. Dame Sawyer, P.

The Hon. Mr. Justice Longley, J. A.
The Hon. Mr. Justice Blackman, J. A.

APPEARANCES: Mr. Milton Evans, Ms. Joy Delancy and Mr. Dorsett for
the Appellant
Mr. Ferron Bethel and Ms. Camille Cleare for the
Respondent

DATES: 18th February, 2009, 21st May 2009

Longley, JA

1. This is an appeal against the judgment of Thompson J. in an action for breach of

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

whether he was entitled to a bonus also arise.

2. It is common ground that the appellant was originally employed under a written

contract of employment with Paradise Island Limited (PIL), a subsidiary of the

respondent in 1977.

3. The respondent contends, however, that from the commencement of that

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

appellant was likely to loose.

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

interfere with them on the basis that they are unreasonable.

8. We can only interfere with those findings if we conclude that no reasonable

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

might be exceptional cases where, because the relationship was entirely

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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

determined by an investigation an evaluation of the factual circumstances in

which the work was performed, it was to be regarded by an appellate court as a

question of fact to be determined by the trial court. He referred to a series of

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

no evidence to support the conclusion reached by Thompson J. Was her

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

being held to be an employee if this is what the facts, regarded as a whole,

indicate. Conversely the fact that the contract was described in the termination

letter of 1 October 2005 as a contract of employment an egregious error, said

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

resources which he needed to do this, including the accommodation and

equipment, were provided to him by the respondent. A portion of his national

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

plain that while he held the position of manager-marketing supervising a staff of

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

an employee throughout and that he remained an employee when the contract

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

of the appeal to their Lordships Board.

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

judgment it is a heavy onus. ( see Mcgregor v Edinburgh Leisure 2007 WL 2817905

(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

demonstrated that she has failed to take advantage of that opportunity.

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

working under a new contract of employment with a new entity.

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

ample reason for not preferring the evidence of the appellant.

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

appointment from Brittania Towers to Paradise Island Towers his contract of

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

where there had been a change in the undertaking or a purported assignment of an

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

employment, a submission which runs counter to his pleadings. The appellants

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

submission in this regard, referred to another unidentified document that is referred to in

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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

mind there is no merit in this ground.

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

taxed if not agreed.

_____
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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