Errol Campbell v Patricia Johnson
| Jurisdiction | Jamaica |
| Judge | Phillips JA,F Williams JA,Edwards JA |
| Judgment Date | 08 February 2019 |
| Neutral Citation | JM 2019 CA 5 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | RESIDENT MAGISTRATE'S CIVIL APPEAL NO 20/2015 |
| Date | 08 February 2019 |
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips P (AG)
THE HON Mr Justice F Williams JA
THE HON Miss Justice Edwards JA (AG)
RESIDENT MAGISTRATE'S CIVIL APPEAL NO 20/2015
AND
Andrew Campbell for the appellant
Ewan Thompson for the respondents
The appellant (Mr Errol Campbell) challenged the decision of Her Hon Mrs Sonya Wint-Blair, Parish Court Judge for the parish of Saint Elizabeth (as she then was), wherein she ordered him to pay to the respondents (Ms Patricia Johnson and PJ's Distributors Limited (PJ's)) money he had owed for various items. This challenge was made on grounds that the learned Parish Court Judge had: (i) made various erroneous findings of fact in relation to the number of hours Mr Campbell had worked, the calculation of his weekly salary and the existence of compulsory savings; and (ii) erred when she admitted two Valentine's Day cards into evidence as they were irrelevant and prejudicial and therefore void of probative value.
Mr Campbell had filed a claim, on 27 August 2013, with plaint no 497/2013 against Ms Johnson and PJ's for termination and redundancy payments amounting to $400,000.00, made up as follows: $100,000.00 for four weeks notice pay and $300,000.00 for 12 weeks vacation pay between 2005 and 2011.
He claimed that, although he was employed by the Ministry of National Security as a District Constable, sometime in 2005 he was employed as a security guard to PJ's of which Ms Johnson was the owner and a director. From time to time he would also work as a bodyguard for Ms Johnson, escorting her to and from her home at nights. In fulfilment of this job as a bodyguard, he lived at Ms Johnson's home between 2009 and 2011. He testified that his remuneration for all those services rendered was $17,000.00 per week or $400.00 per hour. He stated that he was promoted to supervisor in 2006 and his salary was increased to $500.00 per hour. He received a further increase in 2013 to $625.00 per hour, so that at that time he was earning $25,000.00 per week.
He also claimed that the nature of his employment with Ms Johnson and PJ's required him to work in excess of 50 hours per week, but that it was mutually agreed that his pay would be calculated on the basis of 60 hours per week. He claimed further that it was also mutually agreed that Ms Johnson would pay him directly for 40 hours of work per week, and the salary for the additional 20 hours would be placed into compulsory savings. He claimed that he had in excess of $4,000,000.00 in compulsory savings at the time of his termination.
He said she took no holidays nor did he obtain any pay in lieu thereof, and was therefore entitled to $300,000.00 for 12 weeks vacation pay between 6 May 2005 and 5 June 2011. He further stated that his services were abruptly terminated in June 2013 when Ms Johnson replaced him with someone else, and told him that she no longer needed his services. He received no notice of this dismissal or payment in lieu thereof, and so he was entitled to $100,000.00 for four weeks' pay in lieu of notice. As indicated, the total amount he claimed was $400,000.00.
Mrs Nadine Williams-Elliot, a representative from the Ministry of Labour and Social Security, testified on Mr Campbell's behalf. She indicated that she had prepared the worksheet with his notice pay entitlement of $100,000.00 for four weeks pay in lieu of notice (exhibit 14B) and the vacation leave worksheet for 12 weeks pay in lieu of vacation leave amounting to $300,000.00 (exhibit 14C) at $25,000.00 per week.
Ms Johnson and PJ's filed a defence and counterclaim to Mr Campbell's claim. Mrs Johnson, on behalf of PJ's and herself, denied that Mr Campbell was ever employed as a bodyguard, as he was always a security guard employed to PJ's. His salary, Mrs Johnson stated, was $17,000.00 per week. She submitted three petty cash vouchers: one dated 19 February 2011 in the amount of $17,000.00 (exhibit 6A); a voucher dated 9 April 2011 for $18,000.00 (exhibit 6B); and another dated 4 June 2011 for $18,000.00, which Mr Campbell had signed as payment for his weekly salary. She stated that he was a temporary worker and so was not entitled to vacation pay. In any event, she indicated that PJ's had paid him $51,000.00 for three weeks' vacation pay from 2009 to 2011 as evidenced by exhibit 5 (a cheque dated 31 March 2011 issued by PJ's to Mr Campbell), when he started to complain in March 2011. She denied that Mr Campbell had worked in excess of 40 hours per week or that she had ever held any compulsory savings on his behalf. She further testified that both parties shared an intimate relationship, and that Mr Campbell was at her home pursuant to that relationship and not as a bodyguard. She further contended that Mr Campbell, on his own volition, left PJ's employ sometime in June 2011 after a domestic dispute with her, and so was not entitled to notice pay.
In her counterclaim, Ms Johnson and PJ's sought a set off of the $51,000.00 PJ's had paid to Mr Campbell in 2011 for vacation pay from 2009–2011. She also sought $250,000.00 as the balance on the purchase price for a Toyota Starlet motor car. She testified that PJ's had issued exhibit 7 (a cheque dated 21 April 2010 to Mr Campbell in the sum of $300,000.00) for the Toyota Starlet. He later sold the said car without delivering it to her or PJ's, and only refunded her $50,000.00. She also sought $3,780.00 as the balance from a loan of $72,780.00 by PJ's to Mr Campbell to purchase parts for a Toyota Rav4 licensed 6886FZ, which was made via cheque dated 25 March 2013 (exhibit 10), and in respect of which Mr Campbell had paid $69,000.00. Another $11,336.26 was claimed as a loan to Mr Campbell via cheque dated 19 March 2013 (exhibit 16) to purchase parts for the said Rav4; $9,802.00 paid to Mr Campbell using a cheque dated 20 March 2013 (exhibit 17) for expenses associated with the said motor vehicle; and $10,000.00 loaned to him via cheque dated 7 April 2011 (exhibit 18) for motor vehicle repairs, which all remained unpaid.
PJ's filed a claim against Mr Campbell on 11 March 2014 with plaint no 149/2014 to recover $839,764.80 which represented a loan made to Mr Campbell to settle a car loan he had taken out from the Bank of Nova Scotia Jamaica Limited (BNS). This loan was made by PJ's on condition that Mr Campbell would transfer the title of the Rav4 licensed 6886FZ into PJ's name, and that $3000.00 was to be deducted from his salary each week as payment towards that loan. It was Ms Johnson's contention on behalf of PJ's that no payments had ever been made towards this loan.
Mr Campbell denied that he had ever been involved in an intimate relationship with Ms Johnson. He further denied owing $838,764.80 for the Rav4 licensed 6886FZ as according to him, Ms Johnson had in excess of $4,000,000.00 in compulsory savings for him, and so she could have deducted the money from that amount to settle the loan. He testified that he did not trust Ms Johnson as she had purchased a 1997 Rav4 licensed 4793FV for him in PJ's name, but had later seized it from him. He stated further that when he had previously approached her to buy another Rav4 (before purchasing the Rav4 licensed 6886FZ), he had told her that he wanted everything from his compulsory savings and not just the amount for another car, because he could no longer trust her. He stated that he told Ms Johnson that he wanted something in writing and so she wrote a note (exhibit 4) stating “I Patricia V Johnson will be more truthful to you Errol A Campbell” and signed it. He said that he wrote on the reverse side “Princess be more truthful to me Errol Campbell” and he also signed it. It was only after Ms Johnson wrote that note that he trusted her enough to take the cheque from her in the amount of $839,764.80 to repay the loan with BNS.
Ms Johnson denied this claim. She indicated that the note came about following a dispute they had over two Valentine's Day cards she had found in the Rav 4 licensed 4793FV, addressed to him from another woman, and her failure to respond to BNS concerning the purchase of the said Rav4. Mr Campbell wrote “Princess, be more truthful to me Errol Campbell” and signed it, and then he asked her to write the same on the back of the note which she did. She indicated that there was no truth to the claim that Mr Campbell had any compulsory savings, as he would often borrow money and thereafter repay it.
These varying contentions were tested in a trial before the Parish Court Judge.
While the learned Parish Court Judge found that Mr Campbell was an employee within the meaning of section 2 of the Employment (Termination and Redundancy Payments) Act, she nonetheless rejected his argument that he had continuously worked fulltime for Ms Johnson and PJ's. She found that given the nature of business at PJ's, it is unlikely that Mr Campbell would have worked, as he told the court, from 8:00 am to 12:00 am, seven days per week. The learned Parish Court Judge examined the discrepancy between what Mr Campbell had told the court, and the information he had provided to Mrs Williams-Elliot, that is, that he had worked eight hours per day, and found that Mr Campbell had worked eight hours per day, six days per week. She also rejected Ms Johnson's claim that he was only a temporary worker and that he worked only two to three days per week.
The Parish Court Judge rejected the claim that Mr Campbell was a bodyguard and found that “[t]he lines of professional and personal interaction are blurred”. She made this finding based on exhibit 25 which was a memorandum from Ms Johnson to Mr Campbell, tendered into evidence by Mr Campbell, which described the services he performed as...
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