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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
(TOBAGO)
Claim No. C.V.2014-02466
BETWEEN
JUDY KEITH
Claimant
AND
TOBAGO HOUSE OF ASSEMBLY
Defendant
Before The Honourable Mr. Justice Robin N. Mohammed
Appearances:
Ms. Deborah Moore-Miggins for the Claimant
Mr. Kimber Anderson and Mr. Gareth Caesar instructed by Alvin Pascall and Ms. Trudy
Caraballo for the Defendant
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
Introduction, Application and Procedural History
1. By way of Claim Form and Statement of Case filed on the 11th
July, 2014, the Claimant
commenced the instant action against the Defendant in which she sought the following
forms of relief:
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(i) The sum of $98,208.00 being monies due and owing to the Claimant for performing
duties as checker at the request of the Defendant, during the period 2006 to 2014
while she was employed as a Timekeeper;
(ii) Alternatively, a declaration that the Defendant is holding the said sum of $98,208.00
on trust for the Claimant;
(iii) Interest at such rate as the Court deems fit; and
(iv) Costs and/or further relief.
2. A Memorandum of Appearance with Notice of Intention to Defend was filed on behalf of
the Defendant on the 21st July, 2014 and the Defence was then filed on the 26
th
September, 2014. On the 21st November, 2014 the Claimant filed her Amended
Statement of Case. This was followed by the filing of an Amended Defence on the 19th
December, 2014.
3. On the 27th
April, 2014 the witness statements of the Claimant, Judy Keith, and those of
Lois Winchester-Joefield and Lynette McClean were filed. On that date, the witness
statement of Mr. Linford Beckles was also filed on behalf of the Defendant. The
Defendant and the Claimant both filed Notices of Evidential Objections on the 29th
May,
20151. The Defendant then filed its Statement of Issues on the 3
rd June 2015. This was
followed by the Claimant’s filing of her Statement of Issues on the 5th
June, 2015.
4. The trial of this matter took place on the 17th
and 18th
June, 2015. On the 2nd
day of trial,
this Court ordered that the witness statement of Mr. Linford Beckles (witness for the
Defendant), filed on the 27th
April, 2015 be struck out, the said witness having been
absent from the trial without any justifiable excuse on both days of the trial. Both parties
undertook to agree the sum which would have been the difference the Claimant would
have received as Mistletoe Timekeeper and what she would have received had she been
paid as a Checker, without prejudice to the decision of the Court as to whether the
Claimant would have proven her claim.
5. Written submissions on behalf of the Defendant were filed on the 30th
July, 2015.
Therein, Attorney for the Defendant alleged, inter alia, that the Claimant has not
established a cause of action against the Defendant warranting compensation. Written
submissions on behalf of the Claimant were filed on the 9th
September, 2015. The
Claimant then filed further written submissions in response to those of the Defendant on
the 30th
September, 2015.
1 At trial, the Court ruled that the evidential objections were such that could be dealt with on cross-examination
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THE CLAIMANT’S CASE
6. The Claimant says that the Defendant is a body corporate created by the Tobago House
of Assembly Act, 1996 with responsibility, inter alia, for agriculture. She states further
that on or around 10th
July, 2006 the Defendant hired her to work in the Division of
Agriculture, Marine Affairs, Marketing and the Environment (“the said Division”) as a
Mistletoe Timekeeper. She says that her basic wage for this position was $147 per day
until July 2007 when it was increased to $189 per day. According to the Claimant, she
worked with the Defendant in this position until February, 2014 when she resigned in
frustration.
7. The Claimant contends that within months of her commencing employment with the
Division of Agriculture, the Defendant orally requested the Claimant to carry out duties
as a Checker. She says that she complied and actually carried out the duties as a Checker
from 2006 to February, 2014.
8. The Claimant says that in keeping with its request of the Claimant to perform the duties
as Checker and for the better performance of such duties, the Defendant issued the
Claimant with two laminated badges with the word “Checker” displayed prominently
across them and attached to chains. She says that she was instructed by the Defendant to
wear one of the said badges around her neck at all times while she was at work so that
she could be easily identified and the duties she was performing, easily ascertained. The
Claimant says that she complied by wearing one of the said laminated badges hung
around her neck at all times while on the job. She says that as a result, several persons at
the said Division identified her as a Checker and even addressed her as such.
9. The Claimant further contends that in addition, the Defendant advised workers of the
Claimant’s name and the duties that she was performing as a Checker by causing a notice
board entitled “Telephone Directory” to be installed at the Office of the Department of
Natural Resources and the Environment (“DNRE”) of the said Division, situated at Glen
Road, Scarborough. This notice board prominently displayed a list of the names of key
personnel at the Division, their telephone extensions and their designations. According to
the Claimant, included among the names of such personnel so displayed was the name
“Judy Keith” being her name, with the word “Checker” next to same.
10. It is the Claimant’s contention that in carrying out the duties of Checker at the request of
the Defendant, she ought to have been paid a daily basic wage of $234 plus a cost of
living allowance of $6.60. However, she says that despite several requests made by her,
the Defendant failed to do so and continued to pay her in the position of Time Keeper.
The Claimant says that she has called on the Defendant to pay her the sums due to her as
Checker and her Attorneys have written letters to the Defendant demanding same. She
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says that in response thereto, the Defendant convened several meetings to discuss the
matter and promised to look further into same but has not, to date, given the Claimant any
response to her complaints.
THE DEFENDANT’S CASE
11. According to the Defendant, the Claimant was at all material times employed as a
Mistletoe Timekeeper and carried out functions specific to her job title and job
description which are separate and apart from those of a Checker. The Defendant says
that the Claimant was hired in the capacity of a Mistletoe Timekeeper under the
Development Programme with very specific functions, which are apart and separate from
those of a Checker.
12. The Defendant says that the job of Mistletoe Timekeeper arose via Executive Council
Minute No. 444 of June 21st, 2007
2; as such it is a creature of the Executive Council
(and) therefore persons employed under the programme enjoy a form of indefinite term
contract or tenure for so long as the Development Programme exists. Such programmes
may cease upon the funds allotted to the programme having been exhausted. The
Defendant says that the title Checker is not used under the Mistletoe Control Programme.
The Defendant says that in contrast, the term Checker is a public officer’s title given to
those persons who are employed from the Permanent List of persons entitled to
employment as agreed under the collective bargaining agreement. It is a post created by
the Chief Personnel Officer and these persons are permanent or regular workers. A
Checker enjoys benefits different from that of the Mistletoe Timekeeper, having terminal
benefits, leave benefits and is paid salaries on the second point of a Clerk II.
13. Further to this, the Defendant contends that there is a well established procedure for
becoming a Checker which cannot be ignored. According to the Defendant, the Claimant
was informed that at any given time, the Division has a priority list for the positions of
Checker and Foreman. She was also informed that to get on the priority list an employee
must first successfully complete an exam which is offered by the Division whenever the
existing Priority List is exhausted.
14. According to the Defendant, the Claimant made enquiries with the then Human
Resources Officer I with respect to her future employment as a Checker. However, the
Defendant alleges that at the time when the Claimant made these enquiries, a priority list
2 I note that in the Defence of the 26
th September, 2014, the Defendant admits at paragraph 3 thereof that around
July 2006 the Claimant was hired to work in the Division in the capacity as a Mistletoe Timekeeper. How then did the job of Mistletoe Timekeeper arise by Executive Council Minute No. 444 of June 21
st 2007?
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was in existence and the Defendant, as an employer exercising public functions, could
not pass over persons who are currently on the said list. The Defendant contends that
during the Claimant’s tenure with the Division there have been a number of exams which
the Defendant would have offered generally to employees who would have been
interested. However, the Claimant failed to exercise the option to sit any of these exams.
The Defendant says that the Claimant never availed herself of the opportunities which
existed to be elevated to the position of Checker.
15. The Defendant contends that being a Body Corporate discharging public functions, it is
duty bound to follow proper procedures and guidelines for the recruitment of staff.
16. With respect to the identification cards (badges) referred to by the Claimant, the
Defendant alleges that they were issued only for identification purposes – to allow
employees of the Department of Natural Resources and Environment who were located in
one building access to the said building. This building was monitored by 24 hour security
services and all members of staff needed their respective identification cards to gain
access to the building. The Defendant contends that these identification cards, whilst
they provide information about each employee, does not in any way confer, transfer or
elevate an employee to more than what that employee was hired to do by the employer.
17. The Defendant says that the Claimant’s attempt to use her photo identification card to
attain the elevated position of a Checker, in full disregard of proper procedure, is an
attempt to access compensation by circumventing the established procedure for the
recruitment of a Checker by the Defendant. With respect to the Claimant’s allegations
concerning the notice board telephone directory, the Defendant says that the telephone
directory displayed is an internal telephone directory. It says further that the information
in that directory is provided by staff and typed by them for ease of communication,
without the input of the Human Resources Department. The Defendant contends that the
said directory is not an official document of the Division or Department.
18. According to the Defendant, the Claimant was at all material times aware of her job-
status, which is evidenced by varying leave applications which she signed as Mistletoe
Timekeeper. The Defendant contends that as recently as January, 2014 the Claimant
applied for sick leave in the capacity of a Mistletoe Timekeeper which is a mere month
before she commenced employment with the Division of Health and Social Services. The
Defendant contends further that at all material times, the Claimant was a Mistletoe
Timekeeper and was treated as such by her supervisor, the Human Resources
Department, The Administrator and by extension, the Tobago House of Assembly. The
Defendant denies that it ever made any request of the Claimant to carry out the duties of
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Checker, denies that she ever carried out the functions of Checker and denies that she is
entitled to a daily rate of $234 for carrying out the duties of a Checker.
PRELIMINARY ISSUES ARISING FROM THE DEFENDANT’S SUBMISSIONS
19. Before going on to consider the main issues which arise for determination in this matter, I
wish firstly to address two particular issues raised by the Defendant in its written
submissions of the 30th
July, 2015. In the said written submissions, the Defendant raises
as an issue whether this Court erred when it struck out the witness statement of
Linford Beckles and it also raises as an issue whether or not this was a Claim for a
specified sum and if so, whether it was possible for the Claimant to commence a Claim
for a specified sum before determining the specified sum.
20. With respect to the issue of whether the Claim was for a specified sum, the Defendant
submitted that when the matter came up for trial, as a preliminary point the Defendant
sought to strike out the document filed by the Claimant evidencing the breakdown of
salaries owed to her and exhibited by her in her witness statement and Statement of Case.
The Defendant referred to the fact that this Court overruled it (the Defendant). The
Defendant then went on to submit in its written submissions of the 30th
July, 2015 that
“the learned judge erred in that the Claim was a “Specified Claim” or Claim for a
Specified Sum of monies so that the document upon which the Claimant planked her
Claim was critical to the case at commencement.”
21. It must be strongly emphasised that where a party is of the view that a decision of the
Court is incorrect on a matter of law or fact, the appropriate avenue for addressing such
concerns is by an appeal. It is not for the Defendant, subsequent to the ruling of the
Court, to seek to raise as an issue in written submissions in the matter before the said trial
judge its perceived error of the Court’s decisions. Such indiscretion amounts to
challenging the Court indirectly on issues on which the Court has already ruled. This
tactic ought to be sternly frowned upon. Accordingly, this Court is not the appropriate
forum for addressing the issue of whether it erred with regard to its ruling on the
preliminary point raised by the Defendant. That is clearly for the Appeal Court if the
Defendant has reason to take it there.
22. In any event, the Defendant contends that a specified claim is a single claim and not
where liability is first established for quantum to be decided upon later, as this Court
ruled. The Defendant contends that the accuracy of the document used by the Claimant
to plank her cause of action is critical from the start of the case and as such its accuracy
must not be in question. At the time of filing her Claim Form and Statement of Case, the
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Claimant submitted a breakdown of what she considered to be due and owing to her- this
sum was calculated as a specific figure. It cannot be, as the Defendant contends, that the
Claim falls outside of the category of constituting a “specified claim or claim for a
specified sum” if that sum is later shown to be inaccurate. A Claim for a specified sum is
somewhat subjective as necessarily it would be the Claimant’s view of the sum that he or
she believes is due or owing to him or her. This amount may be disputed by the
Defendant but this, does not, I think, operate so as to exclude the Claim from the class of
“a specified claim”. To the extent that this Court ruled that liability was to be established
first with quantum to be decided upon later, this ought to be viewed in context. The
context may be taken from the order of the Court of the 18th
June 2015, where the parties
undertook, without prejudice to agree to the sum which would have been the difference
the Claimant would have received as Mistletoe Time Keeper and what she would have
received as a Checker, a particular sum. While this figure may or may not differ from that
originally calculated by the Claimant at the time of filing her Claim Form and Statement
of Case, this does not change the complexion of the Claimant’s claim. At the time of
filing it was a claim for a specified sum and so remains.
23. The Defendant also states in its written submissions that this Court erred in striking out
the witness statement of Linford Beckles because he did not appear in person. Again, this
was a matter for appeal and this Court is not the proper forum for addressing same. The
Defendant submitted that it complied with the Court’s directions to file a written
statement and that statement was properly before the Court. The Defendant went on to
refer to the case of Deonath Ramkissoon and Denecia Sookram v. The Eastern
Regional Health Authority CV 2008-02135 where a similar situation presented itself to
Kokaram J. The learned Judge admitted the evidence of Dr. Beharry but took note that
his testimony did not come under cross-examination. He said that he placed little weight
on the evidence. The Defendant submitted that “this power is granted to the Court by
Rule 30.8 of the Civil Proceedings Rules (“CPR”) which provides that the Court may
permit a party to adduce hearsay evidence falling within sections 37, 39 and 40 of the Act
even though the party seeking to adduce that evidence has failed to serve a hearsay
notice, or failed to comply with any requirement under Rule 30.7.”
24. “The Act” referred to in Rule 30.8 is the Evidence Act. Chap. 7:02. Section 37(1) of
the Evidence Act provides as follows:
“37. (1) In any civil proceedings a statement made, whether orally or in a
document or otherwise, by any person, whether called as a witness in those
proceedings or not, shall, subject to this section and to Rules of Court, be
admissible as evidence of any fact stated therein of which direct oral evidence
by him would be admissible.” [Emphasis mine]
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25. Thus, the provisions of section 37 are subject, inter alia, to the Rules of Court. Rule
30.8 of the CPR referred to by the Defendant is in the context of hearsay evidence falling
under sections 37, 39 and 40, of which section 37 is relevant here in light of the
circumstances of this case (the witness not attending trial without any justifiable excuse).
Rule 26.1 gives the Court wide powers of case management. Rule 26.1(1)(w) gives the
Court the power to take any other step, give any other direction or make any other order
for the purpose of managing the case and furthering the overriding objective. The
overriding objective as stated in Rule 1.1(1) requires the Court to deal with cases justly.
26. The Defendant’s only witness was Mr. Beckles. They filed no other witness statements.
Mr. Beckles’ witness statement challenged the Claimant’s claim that she performed the
duties as Checker amongst other things. Mr. Beckles, though required to give evidence
for the defendant in relation to his witness statement, did not show up at trial. Having
heard from Attorney for the Defendant on the second day of trial regarding Mr. Beckles,
this Court got the distinct impression that Mr. Beckles simply was unconcerned with the
significance of the proceedings. He was supposed to have been present on the first day of
trial but was not. On the second day of trial, Attorney for the Defendant indicated that
Mr. Beckles’ brother had a medical emergency and he (Mr. Beckles) had accompanied
him to Trinidad. When pressed for further information, Attorney for the Defendant
appeared to indicate that he himself was caught somewhat off-guard by Mr. Beckles’
absence. From Counsel’s answers, this Court was left with the distinct impression that
Mr. Beckles had not even condescended to contact his attorneys to inform them that he
would be absent and it was only when they called him to engage in “housekeeping” prior
to his giving evidence that he relayed that he would not be attending and the alleged
reason for his non-attendance. Counsel relayed that Mr. Beckles was asked by his
attorney to put something in writing, indicating his inability to attend. However, as of the
time that the matter came up for trial on the 18th
June, 2015, no such letter had been
received. In the circumstances, the Court struck out his witness statement.
27. Two points must be noted here. First, no application, oral or otherwise, was made to the
Court to admit the witness statement of Mr. Beckles pursuant to the section 37(1) of the
Evidence Act and in accordance with Rules of Court, namely, CPR Part 30.8. Secondly,
notwithstanding that a potential witness has filed a witness statement in compliance with
the Court directions, such statement is not evidence until the witness goes into the
witness box and takes the oath or affirms that the contents of the statement are true and
correct or all parties agree that there is no need to call the witness at the trial. In such
cases the witness statement is admitted into evidence as evidence-in-chief of the
particular witness.
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28. The Defendant drew reference to Kokaram J.’s exercise of his discretion to attach little
weight to the evidence of the doctor in Deonath Ramkissoon (supra) as if to suggest that
such ought to have been the course of action adopted by this Court. The fact remains that
when a witness fails to attend, the other side is not afforded the opportunity to test the
veracity of its evidence and so, attaching little weight is not much different in effect from
attaching no weight to the evidence, since the end result is that the Court is not moved in
favour of the Defendant’s evidence, and it is for the Claimant then to convince the Court
to accept its evidence. This task is much easier where the Court has rejected or attached
little or no weight to the Defendant’s evidence. There is in reality no discernible
difference between there being no evidence before the Court where a witness statement is
struck out, and there being little weight attached to evidence where a witness is not
present at trial. Moreover, the facts of Deonath Ramkissoon differed from this case and
therefore warranted a different exercise of discretion. There the doctor had a stroke and
was unable to attend. Here, there was no evidence of Mr. Beckles being unable to attend
as a result of his own infirmity. Moreover, here there was Mr. Beckles’ apparent failure
to make any attempt to communicate his alleged position of his own accord. In the
absence of any justifiable excuse having been proffered by him and the circumstances
surrounding his non-appearance, this Court exercised the discretion which it felt that such
apparent disregard of the Court’s process warranted.
29. The Claimant referred to CPR Rule 29.11(4) but I do not think it applies to the striking
out of the witness statement here. This is because Rule 29.11(4) says that if the person
who made the witness statement does not attend in accordance with the order, his witness
statement may not be used as evidence. That order is the one referred to under Rule
29.11(3) and from the earlier directions no such order was made. It follows therefore that
Rule 29.11(4) is not applicable in this situation even though the result is the same.
ISSUES
30. I move now to consider the main issues that on the evidence fall to be determined in this
matter. They are as follows:
(i) Whether the duties of Checker were outside of the scope of the Claimant’s
duties as Mistletoe Timekeeper?
(ii) Whether the Claimant was requested by the Defendant to perform duties as
a Checker?
(iii) Did the Claimant in fact perform the duties of a Checker?
(iv) If so, whether the Claimant is entitled to remuneration for her performance
of the duties as a Checker?
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(i) Whether the duties of Checker were outside of the scope of the Claimant’s duties
as Mistletoe Timekeeper?
31. I wish to be clear that the fact that the witness statement of the Defendant’s only witness,
Mr. Beckles, has been struck out, does not automatically mean that the Claimant is
entitled to the relief sought. The burden still rests with the Claimant to satisfy this Court,
on a balance of probabilities, of her case.
32. The first issue to be determined is whether the duties of Checker were outside of the
scope of the Claimant’s duties as Mistletoe Timekeeper. The Defendant itself twice
referred to the differing nature of the positions of Checker and Mistletoe Timekeeper. At
paragraph 2 of the Amended Defence, the Defendant stated that-
“The Claimant was at all material times employed as a Mistletoe Timekeeper
and carried out functions specific to her job title and job-description which is
apart and separate from that of a Checker.” [Emphasis mine]
And at paragraph 5 of its Amended Defence, the Defendant made a similar statement,
saying that-
“The Claimant was hired in the capacity of a Mistletoe Timekeeper under the
Development Programme with very specific functions, which are apart and
separate from that of a Checker.” [Emphasis mine]
33. Apart from repeatedly referring to the differing nature of the job functions and job
description of the posts of Checker and Mistletoe Timekeeper, the Defendant referred to
the “elevated” position of Checker, which suggests to me that apart from having differing
functions, the post of Checker is considered a higher post than that of Mistletoe
Timekeeper. I note that the Claimant referred to a higher salary than that of the Mistletoe
Timekeeper when claiming what she ought to have been entitled to as a Checker.
34. In light of all of the aforementioned, not least of which was the Defendant’s own
statements regarding the positions of Checker and Mistletoe Timekeeper referred to
above, I conclude that the duties of Checker were distinct from those of Mistletoe
Timekeeper, and consequently, I am of the view that if the Claimant performed duties as
a Checker, she would have been performing duties outside of the scope of her position as
Mistletoe Timekeeper.
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(ii) Whether the Claimant was requested by the Defendant to perform duties as a
Checker?
35. The Claimant alleges in her Statement of Case that she was orally requested by the
Defendant to perform the duties of Checker within months of commencing her
employment with the Division of Agriculture. In her witness statement filed on the 27th
April, 2015, the Claimant provided further details, saying that within about two months
of her commencing employment, she was orally requested by Neila Bobb-Prescott, who
was at the time Environmental Officer in the Department and a servant and/or agent of
the Defendant, to carry out duties as a Checker and she complied.
36. In paragraph [1] of its Amended Defence, the Defendant states that it repeats the matters
as pleaded in its Defence dated and filed on the 26th
September, 2014. In the Defence of
the 26th
September, 2014, the Defendant denies that any request, orally or otherwise, was
made of the Claimant to carry out the duties of a Checker. Given that the only witness
statement for the Defendant was struck out, the Defendant has no evidence before the
Court to corroborate its claim that it never requested that the Claimant carry out the
duties of a Checker. That being said, the Claimant is still required to prove its case and
so, the Court must be satisfied on a balance of probabilities that the Defendant requested
that the Claimant perform duties as a Checker.
37. In support of her case, the Claimant exhibited copies of two badges which she was issued
with during her tenure. Both bear her name and the designation “CHECKER”. I note
particularly, that the second badge exhibited purports to bear the “authorized signature”
of what appears to be the name “Neila Bobb-Prescott”, the same individual whom the
Claimant alleges requested that she perform the duties of Checker. In her witness
statement, the Claimant stated that-
“there was a signature on the badge which I knew to be that of Neila Bobb-
Prescott who was at the time the Director of the Department”.
I note that the Defendant did not expressly dispute authenticity of the badges nor did they
seek to claim in their Defences that the person who signed same had no authority to do
so. Rather, the Defendant claimed that the Defendant was a body corporate discharging
public functions and that it is duty bound to follow the proper procedures and guidelines
for the recruitment of staff. This, however, does not impact upon whether the Defendant,
whether by itself or through one of its agents who had ostensible authority, had in fact
requested that the Claimant perform the duties of Checker. In light of the foregoing, I
find it probable that a request was in fact made, as the Claimant contends, by Ms. Bobb-
Prescott, that she perform the duties of Checker.
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38. In its written submissions, the Defendant contends that there are certain established
criteria for recruitment and upward mobility and it was not in Ms. Bobb’s power to make
the Claimant a Checker. The Claimant has alleged that Mrs. Bobb-Prescott was at the
time a servant or agent of the Defendant. Save for its allegations, the Defendant has no
evidence before the Court to substantiate its claims that Ms. Bobb-Prescott did not have
the authority to act on behalf of the Defendant to request that the Claimant perform the
duties of Checker. The Claimant’s badges (the authenticity of which was not disputed by
the Defendant) bear the authorized signature of Ms.Bobb-Prescott. The Claimant would
not have issued a badge to herself.
39. The Defendant claimed in its Amended Defence that the purpose of the badges is to allow
staff to gain access to the building. Regardless of the purpose for the badge this does not
change the fact that it would have been issued presumably through an official channel,
since badges are not items employees simply print off the computer of their own accord
and place around their necks. Further, the backs of the badges exhibited by the Claimant
contain certain information that gives credence to the view that they were in fact
officially issued as they respectively state that “this card is the property of The
Department of Natural Resources and Environment” and “This card is the property of
the Government of Trinidad and Tobago (Tobago House of Assembly, Department of
Natural Resources and The Environment) and is given for the purpose of all work
related activities...” Again, the Defendant did not dispute the authenticity of these badges
in their Defences. I find it more plausible than not that the reason the badge bearing the
designation “Checker” bore the authorised signature of Ms. Bobb-Prescott is because
she possessed ostensible authority within the THA to issue same and accept, on a balance
of probabilities, that she was purporting to act as agent for the Defendant when she asked
the Claimant to perform the functions of a Checker.
(iii) Whether the Claimant performed the duties of a Checker?
40. The Claimant alleges that she complied with the Defendant’s request to carry out duties
as a Checker and says that she carried out such duties from 2006 to February 2014. In its
Defence, the Defendant denies that the Claimant ever carried out the functions of
Checker. Again, the Defendant has no evidence of witnesses before the Court to
corroborate this Claim.
41. In both her Amended Statement of Case and her Witness Statement, the Claimant has
alleged that she performed the functions of a Checker. In support of this Claim, witness
statements were provided by Lois Winchester-Joefield and Lynette McClean. Mrs.
Winchester-Joefield is a Mistletoe Worker employed by the Defendant in the Department
of Natural Resources and the Environment in the Division of Agriculture Marine Affairs,
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Marketing and the Environment, so employed since 2006. Ms. McClean is a female
labourer also employed by the Defendant in the said Division since 2004. Both witnesses
stated that they know the Claimant in the capacity of Checker for their gang, a
responsibility which she held for approximately seven years.
42. I note that the Claimant has stated that she performed the duties of Checker in her
Amended Statement of Case and Witness Statement, but she negated to state what such
duties actually entailed. However, the evidence of her witnesses, Mrs. Winchester-
Joefield and Ms. McClean, served to fill in that gap in details. Ms. McClean stated that-
“I have worked with several checkers during my ten years of service. As a
checker a person would perform several duties and I know the Claimant to
have performed these duties in relation to my gang. The duties of Checker that
I have known the Claimant to perform in relation to me and other workers in
my gang include: preparing paysheets, TD4 slips, job letters, pay record cards,
time books, kalamazoo and back pay. She also prepared sick leave and
vacation leave records...”
43. Similarly, Mrs. Winchester-Joefield stated that-
“The Claimant has performed duties that I know to be those of a checker in
relation to my gang. For instance she prepared paysheets, TD4 slips, job
letters, kalamazoo, time records, time books and back pay. She also arranged
sick leave and vacation leave.”
44. In addition to setting out the functions which the Claimant performed generally as
Checker, both witnesses gave examples of personal experiences which they had with the
Claimant in her capacity as Checker. Mrs. Winchester-Joefield stated that-
“I have always regarded the Claimant as the Checker for my gang and I have
dealt with her as such. I have gone to her with my requests and concerns
relating to sick leave, pay sheets, TD4 and other matters stated at paragraph 2
herein. She has either resolved these issues or advised me how they could be
resolved. For instance, in or around 2011, I was injured on the job and I
informed the Claimant in her capacity as the checker of my gang. She was able
to advise me and give me guidance on how I should handle the reporting of my
injury to the Department.”
Ms. McClean stated that-
Page 14 of 24
“The Defendant had held her out to me as being my Checker and I accepted
that. Thus I would always go to her first about all my concerns and/or
problems related to the job. She would do whatever was necessary to have
them resolved or advise me on what I should do. An example of this was the
occasion in or around January 2014 when I was marked off as absent by a
foreman and so was not paid for that time. I complained to the Claimant and in
keeping with her duties as Checker she promptly resolved the situation”.
45. I note that the evidence of the said witnesses was not challenged under cross-
examination. During cross examination, Counsel for the Defendant questioned Ms.
McClean as to whether she was able to say if a Mistletoe Timekeeper could have carried
out the functions (which she attributes to being those of a Checker) as well. However, I
note that the Defendant itself has emphasized that the positions of Mistletoe Timekeeper
and Checker are two distinct positions, with the position of Mistletoe Timekeeper having
specific functions which are apart and separate from that of a Checker3. Thus, according
to the Defendant, the functions of both posts are not intertwined and so, it follows
logically that if one is found to be performing functions relative to the post of Checker,
then those functions cannot be those of a Mistletoe Timekeeper. Bearing this in mind, I
turn now to Exhibit “C” attached to the Defendant’s Defence of the 26th
September,
2015. Exhibit “C” contains what the Defendant identifies as copies of the job descriptions
of Checker and Mistletoe Timekeeper. One document is entitled “Job Description of a
Checker”. It states that “Checker performs clerical work in complexity but wide in
variety on construction jobs and in maintenance operation.” It goes on to state:
“Tasks include;
1) Receive time books from outside (on station) checkers.
2) Enter Time books information in Pay Record Card
3) Update pay record
4) Submit time books to computer room
5) Collect time books and pay sheet from computer room
6) Ensure Pay Sheet is Balanced
7) Enter other information in Pay Record card and sign off Pay Sheet
8) Take Pay Sheet to Accounts Unit to process for payment
9) Witnessing the payment of wages to daily rated employees
10) Update Kalamazoo
11) Prepare Record of Service
12) Prepare TD-4 Slips
13) Process Arrears
14) Calculate Overpayment and Underpayment”
3 See paragraphs 2 and 5 of the Amended Defence
Page 15 of 24
46. I note that all, save for two of the duties of Checker which Mrs. Winchester-Joefield and
Ms. McClean allege that the Claimant performed, appear to fall under those duties
outlined in the job description of a Checker provided by the Defendant. These are the
allegations that she prepared paysheets, TD4slips, pay record cards, time books,
kalamazoo and back pay. While I note that they also claim that she arranged sick leave
and vacation leave and prepared job letters, and that these are not stated expressly on the
job description list, the said list appears to be non-exhaustive as it commences by saying
“Tasks include”. As such, it may well be that those two other duties fall within the ambit
of a Checker. Thus, the Claimant’s witnesses’ unchallenged evidence of her duties
performed as Checker appears to be corroborated by the Defendant’s own exhibit of the
job description of a Checker.
47. The Defendant also exhibited at exhibit “C” another document titled “List of Duties of
Judy Keith (Mistletoe Timekeeper)”. That document sets out the following as being
duties of the Claimant:
“1) Receive Time-book from foremen
2) Update Pay-Record Card
3) Enter Time-book information if any changes on change forms
4) Submit time-books and change forms to computer room
5) Computer room prints pay-sheets to be verified by Judy Keith
6) Ensure Sheet is Balanced and Submit to Accounts Unit
7) Process leave where necessary and provide information for Job Letters.”
48. An examination of the job description of a Checker provided by the Defendant and the
document of the list of duties of the Claimant purportedly carried out as a Mistletoe
Timekeeper reveals much overlap, with the majority, save but two of the duties on the list
of duties of the Claimant as a Mistletoe Timekeeper falling under the list of duties of a
Checker. Now, according to the Defendant’s own Defence, the two posts have specified
functions, with the duties of a Mistletoe Timekeeper being separate and apart from those
of a Checker. It is thus passing strange that the functions outlined under the duties of the
Claimant as a Mistletoe Timekeeper appear for the most part to match the duties of a
Checker. I take this into account and also bear in mind the evidence of the Claimant’s
witnesses who make the unchallenged claim that she performed certain duties as Checker
which also for the most part, match the job description of a Checker, provided by the
Defendant.
49. Additionally, both Ms. McClean and Mrs. Winchester-Joefield stated that during the
period that they knew the Claimant as the Checker on their gangs they noticed her
wearing two badges around her neck, both of which bore certain information including
Page 16 of 24
the Claimant’s name and designation “Checker”, and one of which bore the signature
“Neila Bobb-Prescott” which appeared to be authentic as they had seen it several times
before in the Department on documents pertaining to the Department. Neither doubted
that the badges had been issued by the Defendant to the Claimant and both found that
they looked like badges issued to various workers in the Department. Both witnesses
stated that such badges generally assisted workers in identifying staff and their duties.
Mrs. Winchester-Joefield also stated that she saw a typewritten notice in the Department
resembling a directory with information about key staff of the Department. It contains the
names of key personnel in the Department with numbers and the Claimant’s name
appears with the number “3623” and next to it in the column termed “Position” is the
word “Checker”. Mrs. Winchester-Joefield stated that she used the “3623” number to
contact the Claimant on several occasions.
50. The Defendant seeks to downplay the significance of the badges and the telephone
directory listing, claiming in its Defence that her attempt to use her badges to attain the
elevated position of a Checker is an attempt by the Claimant to access compensation by
circumventing the established procedure for the recruitment of a Checker by the
Defendant and that the telephone directory displayed is an internal telephone directory,
provided by staff and typed by them for ease of communication, without the input of the
Human Resources Department. The Defendant claims that that directory is not an official
document of the division or department. However, the Defendant has no evidence before
this Court that corroborates these allegations.
51. In arriving at its conclusion as to whether the Claimant performed the duties of a
Checker, this Court considers the evidence. I take into account the evidence of the two
witnesses employed by the Defendant who claim that the Claimant performed the duties
of Checker for approximately seven years. I note that their material evidence went
unchallenged during cross-examination. I also note that the duties which they allege the
Claimant performed fall for the most part, under the job description of a Checker
provided by the Defendant as Exhibit “C”. I also note the curious overlap in the duties set
out by the Defendant as being the duties of the Claimant as Mistletoe Timekeeper with
those found under the job-description of a Checker. This, despite the Defendant’s
adamant position in its Amended Defence that the job description and functions of a
Mistletoe Timekeeper are distinct and separate and apart from a Checker. This I all take
into consideration alongside the fact that the Claimant wore badges with her name and
the designation “Checker” and that the telephone directory also bore her name with that
designation.
52. The Defendant claims that the Claimant was at all material times aware of her job status,
which it says is evidenced by her varying leave applications which she signed as
Page 17 of 24
Mistletoe Timekeeper. The Defendant says that as recently as January, 2014, the
Claimant applied for sick leave in the capacity of a Mistletoe Timekeeper which was a
mere month before she commenced employment with the Division of Health and Social
Services. In support of its claim, the Defendant annexed a copy of the Claimant’s sick
leave application of January 2014 and vacation leave application of 2013 as Exhibits “A”
and “B”.
53. Indeed, a perusal of the said exhibits does show that the Claimant signed same, stating
her occupation as a Mistletoe Timekeeper. However, this does not, to me, change the
complexion of the issue of whether the Claimant performed the duties of a Checker. The
Claimant herself claimed that she was employed in the position of a Mistletoe
Timekeeper and shortly thereafter was asked to perform the duties of a Checker. The fact
that she stated her occupation as a Mistletoe Timekeeper does not answer the question of
whether, when all of the circumstances of the case- all of the evidence- is looked at,
whether one can deduce that she in fact performed the duties of a Checker despite what
she was originally contracted to do.
54. Save for the documents where the Defendant states her occupation as being that of
Mistletoe Timekeeper and the document at exhibit “C” purportedly setting out the list of
the Claimant’s duties as Mistletoe Timekeeper, the Defendant has no other evidence to
corroborate its allegations that the Defendant did not carry out the duties of Checker. The
witness statement of its only witness, Mr. Linford Beckles was struck out for his failure
to appear at trial without any justifiable excuse. Even if his witness statement had not
been struck out, his absence at trial would have still resulted in his witness statement
holding little weight, in light of the inability to test the veracity of same under cross-
examination.
55. In TC Coombs v. IRC [1991] 2 AC 283, Lord Lowry had this to say:
“In our legal system generally, the silence of one party in face of the other
party’s evidence may convert into proof in relation to matters which are, or are
likely to be, within the knowledge of the silent party and about which that party
could be expected to give evidence. Thus, depending on the circumstances, a
prima facie case may become a strong or even overwhelming case. But, if the
silent party’s failure to give evidence (or to give the necessary evidence) can
be credibly explained, even if not entirely justified, the effect of his silence in
favour of the other party may be either reduced or nullified.”
Page 18 of 24
56. In Wisniewski (A Minor) v. Central Manchester Health Authority [1998] EWCA
Civ. 596, Brooke L.J. considered a string of authorities which dealt with the effect of a
party’s failure to call witnesses. He summarized the principles thus:
“(1) In certain circumstances a court may be entitled to draw adverse inferences from the
absence or silence of a witness who might be expected to have material evidence to give
on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the evidence
adduced on that issue by the other party or to weaken the evidence, if any, adduced by
the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the
former on the matter in question before the court is entitled to draw the exercised
inference; in other words, there must be a case on that issue.
(4) If the reason for the witness’s absence or silence satisfies the court then no such
adverse inference may be drawn. If, on the other hand, there is some credible explanation
given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her
absence or silence may be reduced or nullified.”
57. Applying the aforementioned two cases, even if the witness statement of the Defendant’s
witness, Mr. Beckles, had not been struck out, his absence without any justifiable excuse
may well have entitled the Court to draw adverse inferences with respect to whether the
Claimant in fact performed the duties of Checker. His absence may well have converted
the Claimant’s case into a strong case. That being said, I am satisfied having considered
all of the evidence traversed above that the Claimant has established on a balance of
probabilities that she in fact performed the duties of Checker and I accept her evidence
that she did so from around August 2006 to February 2014, when she left the Division of
Agriculture, Marine Affairs, Marketing and The Environment.
(iv) Is the Claimant entitled to remuneration for her performance of duties as a
Checker?
58. Having found that the Claimant did in fact perform duties as Checker, the issue which
falls to be determined is whether she is entitled to remuneration for her performance of
such duties. Whether the Claimant is entitled to remuneration depends on how the
contract is construed.
59. The Claimant was asked to perform the duties of Checker. According to the Defendant’s
own Defence, the functions of Mistletoe Timekeeper were separate and apart from that of
a Checker. Accordingly, in asking the Claimant to perform the duties of Checker, the
Page 19 of 24
Defendant was asking the Claimant to perform duties outside of the contemplation of the
contract of a Mistletoe Timekeeper- the entire nature of service provided would have
been entirely changed. The Claimant agreed to perform the duties of a Checker. In the
circumstances, what must be determined is whether this change in the nature of the
contract by the parties may be said to have constituted a variation or rescission of the
original contract. The law on variation is discussed in Chitty on Contracts 24th
Ed. Vol.
I. It is stated that the parties to a contract may effect a variation of the contract by
modifying or altering its terms by mutual agreement4. Chitty on Contracts goes on to
state that-
“the agreement which varies the terms of an existing contract must be
supported by consideration. In many cases, consideration can be found in the
mutual abandonment of existing rights or the reciprocal conferment of new
benefits by each party on the other.”
60. In the instant matter, there is no consideration for the Claimant’s performance of the
duties of Checker. She has not claimed that in return for the performance of the duties of
Checker, the employer agreed to pay her as a Checker. What she has claimed is that she
performed the duties as Checker at the Defendant’s request and as such, she ought to be
paid as a Checker. Thus, while the Defendant would have had new benefits being
conferred on it by the Claimant’s performance of the functions of Checker, it cannot be
said that the Claimant, who continued to be paid the salary of a Mistletoe Timekeeper,
had new benefits conferred on her. Accordingly, the agreement not being supported by
consideration, it cannot be said that there was, in law, a variation of the original contract.
61. Rescission by agreement is also discussed in Chitty on Contracts5. It is stated that-
“Where a contract is executory on both sides, that is to say, where neither
party has performed the whole of his obligations under it, it may be rescinded
by mutual agreement, express or implied. The consideration for the discharge
is found in the abandonment by each party of his right to performance or his
right to damages, as the case may be6...
The question whether a rescission has been effected is frequently one of
considerable difficulty, for it is necessary to distinguish a rescission of the
contract from a variation which merely qualifies the existing rights and
obligations. If a rescission is effected, the contract is extinguished; if only a
variation, it continues to exist in an altered form. The decision on this point
4 Paragraph 1376
5 Supra
6 Paragraph 1369
Page 20 of 24
will depend on the intention of the parties to be gathered from an
examination of the terms of the subsequent agreement and from all the
surrounding circumstances. Rescission will be presumed when the parties
enter into a new agreement which is entirely inconsistent with the old, or if
not entirely inconsistent with it, inconsistent with it to an extent that goes to
the very root of it. The change must be fundamental and “the question is
whether the common intention of the parties was to ‘abrogate’, ‘rescind’,
‘supersede’ or ‘extinguish’ the old contract by a ‘substitution’ of a
‘completely new’ or ‘self-subsisting agreement.7” [Emphasis mine]
62. The Defendant requested that the Claimant perform the duties of a Checker. The duties of
a Mistletoe Timekeeper are separate and apart from those of a Checker, according to the
Defendant itself. Thus, the agreement whereby the Claimant was asked, and agreed, to
perform the duties of a Checker was entirely inconsistent with the original agreement to
perform the functions of a Mistletoe Timekeeper. The request and agreement to perform
the duties of a Checker would go to the root of the original contract. Accordingly, the
original contract would have been rescinded by the conduct of the parties.
63. The original contract having been rescinded, this then begs the question of whether a new
binding contract was impliedly formed by the conduct of the parties. At first blush, one
may be inclined to draw that conclusion. However, for a binding contract to be formed,
consideration must pass. The Claimant says she was requested to perform the duties of a
Checker, which she did. The Defendant would thus have reaped the benefit of her
performing the services of checker. The question, however, is whether there was any
consideration for the performance of such services. The Defendant never stated that she
would be paid for such services. This was never alleged by the Claimant at any point in
her Amended Statement of Case or her Witness Statement. There being no consideration
flowing, it cannot be said that a binding contract had been formed.
64. This accordingly gives rise to the issue of whether at law the Claimant would be entitled
to remuneration outside of the ambit of a contract. In Joseph Henry v. Tobago
Plantations Limited CV2007-03427 the Claimant's claim was against the defendant for
the payment of the sum of $437,500.00 as the sum due and owing to him for the
performance of the task involving the design and construction of an underground
electrical distribution system ("the UED System") on the defendant's project at Lowlands,
Tobago. The claimant contended that the design and establishment of the UED System
was additional to his duties as Manager-Development and that he undertook this task at
the request of the Director in charge. The Defendant, having paid the claimant his regular
salary under his contract as Manager-Development, denied that it was liable to pay to the
7 Paragraph 1372 “substituted contract”
Page 21 of 24
claimant any additional remuneration. Kokaram J., in delivering his judgement, stated as
follows:
“Even if the Claimant cannot prove in fact that there was an agreement
between the parties to pay to him extra remuneration, the Claimant’s
demonstration that the design of the UED System bore no direct relation to his
official work or which does not form part of his original contract is the
quintessential of a quantum merit8(sic) claim. Such claims are an obligation
arising quasi ex contract. In such claims, the obligation to pay reasonable
remuneration for work done is imposed by a rule of law when there is no
binding contract between the parties. The law will imply a promise to pay on
the part of a person who requests another to perform services. The existence
of a contract between the parties in respect of the services rendered is not a
requirement for the implication of a promise to pay: See Craven Ellis v
Cannons Limited.”9
[Emphasis mine]
65. Kokaram J. also made reference to the dicta of Goff L.J. in British Steel Corporation v.
Cleveland Bridge and Engineering Co Limited [1984] 1 All ER 504. Therein, the
learned Judge stated that-
“Both parties confidently expected a formal contract to eventuate. In these
circumstances to expedite performance under that anticipated contract, one
requested the other to commence the contract work, and the other complied
with that request. If, thereafter, as anticipated, a contract was entered into, the
work done as requested will be treated as having been performed under that
contract; if contrary to their expectation, no contract was entered into, then
the performance of the work is not referable to any contract of which the
terms can be ascertained, and the law simply imposes an obligation on the
party who made the request to pay a reasonable sum for such work as had
been done pursuant to that request, such an obligation sounding in quasi
contract or, as we now say, in restitution.” [Emphasis mine]
66. What may be gleaned from the dicta of Kokaram J. and Goff L.J. in Joseph Henry10
and
British Steel Corporation11
respectively, is that where one party requests another to
perform services and the latter in fact does so, in circumstances where the performance is
not referable to any binding contract, the law imposes an obligation arising quasi ex
contract on the party who requested the performance of services to pay reasonable
8 I think Kokaram J wanted to refer to the latin maxim “quantum meruit” instead of “quantum merit”
9 [1936] 2 KB 403
10 CV2007-03427
11 [1984] 1 All ER 504
Page 22 of 24
remuneration for work done. Applying this principle of law to the instant matter, the
parties having rescinded the original contract by one party requesting and the other
agreeing to perform duties outside of the scope of the original contract, there being no
binding contract in place, the law imposes an obligation on the Defendant, who made the
request for the Claimant to carry out the duties of Checker, to pay reasonable
remuneration for such work done. Accordingly, the Claimant would be entitled to
remuneration on the quantum meruit basis.
67. Having established that the Claimant is entitled to reasonable remuneration for work
done, the question of what constitutes reasonable remuneration must be resolved. The
Claimant performed duties as a Checker but continued to receive her pay as a Mistletoe
Timekeeper up until she resigned in February, 2014. In my view, reasonable
remuneration for work done would, in the circumstances, be for the Claimant to receive
the salary of a Checker for the period for which she performed such duties. Obviously,
having been paid the salary of a Mistletoe Timekeeper, what the Claimant would now be
entitled to is the difference in salary between that of a Mistletoe Timekeeper and that of a
Checker for the period for which she performed the functions of a Checker. I have
accepted the Claimant’s evidence insofar as she claimed to have commenced
employment as a Mistletoe Timekeeper on the 10th
July 2006 and thereafter performed
the functions of a Checker from August 2006 to February 2014 when she resigned.
Accordingly, she would be entitled to the difference in salary between a Mistletoe
Timekeeper and Checker for the period August 2006 to February 2014.
68. At the trial of this matter on the 18th
June, 2015, both parties undertook to agree on the
sum which would have been the difference that the Claimant would have received as
Mistletoe Timekeeper and what she would have received as a Checker. To date, this
Court has yet to receive the figures arrived at by the parties in that regard and so, the
Order of this Court will accordingly encompass instructions to that effect.
CONCLUSION
69. Having considered all of the evidence in this matter, this Court holds that having been
employed as a Mistletoe Timekeeper by the Defendant, the Claimant was requested by
the Defendant to, and did in fact perform, the duties of a Checker from August 2006 to
February, 2014. Having performed such duties this Court finds that the Claimant is
entitled to reasonable remuneration for the period for which she carried out the duties as a
Checker, such reasonable remuneration in circumstances being the difference in salary
between that of a Mistletoe Timekeeper and a Checker. This Court finds that it would be
just in all the circumstances that the claimant be awarded interest on the said sum due and
owing at a reasonable commercial rate.
Page 23 of 24
70. In light of the Court’s findings based on the facts before this Court, employers would do
well to ensure that employees are engaged in providing services that are within the scope
of their employment and they ought to note that where they require employees to perform
duties that are outside of the ambit of, or entirely different from, their job specifications,
they (the employers) cannot simply seek to take advantage of the employee’s arguably
weaker position of power by insisting upon the original contract.
71. Accordingly, having considered all of the evidence and taking into account the
Court’s findings this Court orders as follows:
ORDER:
1. The Claimant be and is hereby entitled to reasonable remuneration for such
duties as a Checker performed at the request of the Defendant during the period
August 2006 to February 2014.
2. The reasonable remuneration referred to at clause [1] of this Order shall
constitute the difference in salary between that of a Mistletoe Timekeeper and
that of a Checker for the period August 2006 to February 2014 with all
necessary deductions for periods for which the Claimant would not have been
entitled to payment.
3. In accordance with the undertaking given to this Court on the 18th
June, 2015
and renewed today, this 24th
November, 2015 the parties shall arrive at an
agreed sum by the 8th
December, 2015 as to what would be the difference that
the Claimant would have received had she been paid as a Checker for the period
August 2006 to February 2014 as opposed to a Mistletoe Timekeeper .
4. Interest is hereby awarded on the agreed sum and shall be calculated at the rate
of 2% per annum from August 2006 to the date of this Judgment and further at
the rate of 12% from the date of this Judgment to the date of payment.
5. The Defendant shall pay to the Claimant her costs of this Claim to be quantified
on the scale of prescribed costs pursuant to CPR 1998 Part 67.5(1) and (2).
6. Quantification of the sum to be paid to the Claimant in accordance with the
undertaking referred to in clause [3] of this order is fixed for 16th
December,
2015 at 1:30 pm via video link from POS 19 to TGO 04.
Page 24 of 24
7. Quantification of costs on the prescribed scale as referred to in clause [5] of this
order is deferred to the 16th
December, 2015 as well.
Dated this 24th
day of November, 2015
___________________
Robin N. Mohammed
Judge
