United General Insurance Company Ltd v Marilyn Hamilton

• Jurisdiction: Jamaica
• Judge: COOKE, J.A. , HARRISON, J.A. , MORRISON, J.A. , COOKE J.A.
• Judgment Date: 15 May 2009
• Neutral Citation: JM 2009 CA 40
• Judgment citation (vLex): [2009] 5 JJC 1501
• Court: Court of Appeal (Jamaica)
• Date: 15 May 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE COOKE, J.A THE HON. MR JUSTICE HARRISON, J.A THE HON. MR JUSTICE MORRISON, J.A

BETWEEN

UNITED GENERAL INSURANCE COMPANY LIMITED

APPELLANT

AND

MARILYN HAMILTON

RESPONDENT

Mr Conrad George instructed by Hart, Muirhead & Fatta for the appellant

Mr Paul Beswick instructed by Ballentyne, Beswick & Co. for the respondent

CIVIL PROCEDURE - Summary judgment - Order to strike out statements of case - Whether statements of case showed no reasonable cause of action - Civil Procedure Rules 2002. Part 26

COOKE, J.A.

I have read the draft judgment of Morrison J.A. I agree with his reasoning and conclusion. I wish to add nothing further.

HARRISON, J.A.

I agree.

MORRISON, J.A.

Introduction

1 This is an appeal from an order made by Thompson-James J on 29 July 2008 refusing to strike out the respondent's statement of case or to strike out certain paragraphs of the respondent's particulars of claim or to grant summary judgment in favour of the appellant on her claim.

2 The respondent was employed to the appellant with effect from 10 January 2000 as Information Systems Manager pursuant to terms and conditions of employment set out in a letter from the appellant to the respondent dated 16 December 1999 ("the contract"). The contract provided that, upon her appointment as a permanent member of the appellant's staff at the end of the required three month probationary period, a minimum of one month's notice would be required to terminate the respondent's employment.

3 In addition to the usual terms and conditions as to salary and other monetary benefits, leave and the like, the contract provided, among various items described as "fringe benefits", for pension benefits in the following terms:

"Group Pension Scheme with obligatory contribution of 5 percent of salary with the option to contribute an additional 5 percent. The Company makes a contribution of 5 percent."

4 By letter dated 28 July 2006, the respondent's employment was terminated by the appellant with immediate effect on the ground that it had come to the appellant's attention that she "had knowingly put the organisation at risk by introducing pirated software into the environment." It is common ground that, save for a disputed amount of $40,000.00, the respondent was paid on termination one month's net emoluments in lieu of notice. As a result, the respondent issued proceedings against the appellant on 12 March 2007 challenging the stated reason for terminating her employment and claiming damages for wrongful dismissal.

The pleadings

5 As the application which was before Thompson-James J asserted that the respondent's pleadings could not sustain any cause of action against the appellant, it is necessary to set out in full paragraphs 9–20 of the particulars of claim:

• "9. Pursuant to the contract of employment between the parties, the defendant made certain contributions to the pension scheme operated by the defendant for its employees and which contributions were made during the tenure of the claimant's employment and for and on behalf of the claimant's pension account.

• 10. The aforesaid contributions were made for the benefit of the claimant and for her pension account only and the defendant was obliged on termination of the claimant's employment to pay over the total of the said contributions and the claimant's contributions to the claimant together with any interest or investment proceeds accumulated therefrom.

• 11. Further and/or in the alternative the claimant will say that the defendant has breached an expressed condition in the agreement for services evidenced by the letter of employment dated the 16th day of December, 1999, and stated as follows:

  As Fringe Benefits, the Company provides:

  • (3) Group Pension Scheme with obligatory contribution of 5 percent of salary with the option to contribute an additional 5 percent. The Company makes a contribution of 5 percent.

• 12. The aforesaid condition meant and was intended to mean that the employee being the claimant, was guaranteed the contribution stated therein by the defendant, in consideration of her being obliged to contribute to the defendant's pension fund.

• 13. The defendant has failed and/or refused to pay over the proper amount due to the claimant from its pension scheme and has instead paid to the claimant only the amounts attributable to her contributions which were deducted directly from her salary, and is therefore in breach of the condition in the agreement for services requiring the defendant to provide a stated contribution payable to the claimant's pension enrollment fund and the defendant and its pension fund has been unjustly enriched at the expense of the claimant by the defendant's refusing to pay over the defendant's pension contribution intended for the benefit of the claimant.

• 14. The defendant will say that her contract of employment does not provide for any specified period of notice, and in lieu thereof, a reasonable period of notice for an employee of her standing is 36 months.

• 15. At the time of her termination, the claimant was 57 years of age, and in excellent health. The claimant had reasonable expectations of working with the defendant until her retirement at age 65 and would therefore have been able to earn income at increasing rates for at least another 8 years, estimated at $30,000,000.00 after taxes and statutory deductions.

• 16. Furthermore, the claimant's position was one of significant responsibility and accountability. The action of the defendant in wrongfully dismissing the claimant has irreparably tainted the claimant's personal and job related credibility and therefore created a significant disadvantage for the claimant in obtaining alternative employment, particularly in an employment market for senior Computer Information technology professionals and manager, which is of limited scope in the Island. The loss of credibility is exacerbated by the fact that the claimant is of advanced working age, and also had spent in excess of 5 years with the defendant at the time of her termination, giving rise to an immediate assumption by both prospective employers and other persons in the industry, that the claimant had been fired for dishonest behaviour of some kind.

• 17. The claimant will say that the manner and circumstances of her dismissal were in breach of the implied term of trust and confidence in the agreement for employment between the parties. At all material times, the claimant reposed in the defendant, the confidence and trust which was expected and implied in the relationship of master and servant, and relied upon the defendant not without reasonable and proper cause to conduct itself in such a way as to cause distress, anxiety and concern to the claimant and/or humiliate the claimant before her peers or other employees and/or injure the claimant's reputation as a manager and as a person who could be trusted with the management of corporate matters of importance, and/or cause damage to the claimant.

• 18. The claimant has suffered from anxiety and depression as a result of the wrongful dismissal, and further has lost confidence in her ability to function effectively and efficiently as a manager in a highly technical and technologically mobile area of commerce.

• 19. Further and/or in the alternative the claimant will say that her wrongful dismissal from the post of Information Systems Manager was effectively an imputation of dishonesty in the exercise of her job related functions as Information Systems Manager, which had the effect of an importation of obloquy among the commercial community of the Island, and as a result permanent loss and damage. The action of the defendant has therefore effectively slandered the reputation and character of the claimant, causing her permanent loss and damage.

• 20. The claimant has been unable to secure alternative employment since her termination from the defendant despite continuing attempts. The claimant will give credit to the defendant for any alternative employment obtained during the period of 5 years from the date of her termination."

6 The appellant filed a defence in which if reiterated its stated reason for dismissing the respondent and, in specific response to those paragraphs of the particulars of claim set out above, pleaded as follows:

• "8. As to paragraph 8, the Defendant will say that although it was entitled to accept the Claimant's repudiatory breach of contract, to treat the contract as discharged and, accordingly, to dismiss her summarily without compensation, the Defendant (without prejudice to the above position) paid to the Claimant a sum equivalent to her net emoluments of employment for her notice period, specified in her contract of employment as being one (1) month.

• 9. Save that the Defendant will say that Paragraph 9 is irrelevant to any cause of action available to the Claimant (and is therefore liable to be struck out, and the Defendant will apply for an order striking it out) such paragraph is admitted.

• 10. Paragraph 10 discloses no cause of action; as pleaded in paragraph 9, of the Particulars of Claim, pension contributions were paid by both the Claimant and the Defendant to the pension scheme. No claim in respect of such contributions lies against the Defendant, and the Defendant will apply to strike out Paragraph 10.

• 11. Paragraphs 11, 12 and 13 disclose no cause of action in law, and the Defendant will apply to strike them out.

• 12. The Defendant denies Paragraph 14, and avers that the Claimant's contract of employment embodied in the letter to her from the Defendant dated 16 December 1999, includes a provision that (emphasis added):

  "During the three (3) months probationary period, neither party will be required to give notice of termination. However, should your probation be...