Bent (George) v Y.P Seaton

• Jurisdiction: Jamaica
• Judge: G. Brown J. (acting)
• Judgment Date: 06 November 2009
• Judgment citation (vLex): [2009] 11 JJC 0604
• Court: Supreme Court (Jamaica)
• Date: 06 November 2009
• Docket Number: CLAIM NO. C.L 2002B 191

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. C.L 2002B 191

BETWEEN

GEORGE BENT

CLAIMANT

AND

Y.P. SEATON

DEFENDANT

EMPLOYMENT LAW - Redundancy payments - Whether there was a breach of contract - Whether there was a contract for services or a contract of services - Employment (Termination and Redundancy Payments) Act

G. Brown J. (acting)

1 The Claimant filed a Writ and a Statement of Claim to recover redundancy payment in the sum of four hundred and fourteen thousand seven hundred and eighteen dollars ($414,718.00) that the Defendant had failed to pay him under the terms of his contract of employment.

2 The Claimant alleged that he was employed to the Defendant from 1972 to February 18, 2000 as a machine operator. He maintained that his employment was continuous save and except for about six (6) months when he was sick.

3 The Defendant in the amended Defence denied that the Claimant was entitled to any redundancy payments. It was contended that the Defendant was employed between 1986 and 1999 as a site contractor until his dismissal in September 1999 for lack of performance.

4 It was the Claimant's contention that he was not a contract worker but instead an employee as defined by Section 2(1) of the Employment (Termination and Redundancy Payments) Act. It reads;

"Employee" means an individual who has entered into or works (or, in the case of a contract which has been terminated, worked) under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, be express or implied, oral or in writing...."

5 It was submitted that the common law distinction between an employee and a contract worker I to be seen in the classic statement of Cooke, J. in Market Investigations v Minister of Social Security [19691 2 WLR 1:

"The fundamental test to be applied is this: Is the person who has engaged to perform these services performing them as a person in business on his own account If the answer to question is "yes", then the contract is a contract for services. If the answer is 'no', then the contract is one of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although this can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as to whether the man performing the services provided his own equipment, whether he hires his own helpers, what degree of financial risks he takes, what degree of responsibility of investment management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his tasks."

6 It was the opinion of Counsel for the Claimant that since

• (1) Statutory deductions were taken from his salary. (See: Jamaica Public Services Co. Ltd. v Winston Barr et al (1988) 25 JLR 326. Where it was concluded that payment of P.A.Y.E. was indicative of an employee status);

• (2) The Claimant did not have control over his work and was being supervised;

• (3) The Claimant received health benefits;

• (4) The Claimant paid union dues;

• (5) The Claimant never used his own equipment;

7 The gist of the Claimant's action was that...