Michel Magloire AKA Michael Magloire v Attorney General

• Jurisdiction: St Lucia
• Judge: EDWARDS, J.A.,Justice of Appeal,Ola Mae Edwards,Janice George-Creque,Davidson Baptiste,Justice of Appeal [Ag.]
• Judgment Date: 20 November 2009
• Judgment citation (vLex): [2009] ECSC J1120-2
• Date: 20 November 2009
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2008/019 and 020

[2009] ECSC J1120-2

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Baptiste Justice of Appeal [Ag.]

HCVAP 2008/019 and 020

Between:

Michel Magloire A.K.A Michael Magloire

Appellant/Claimant

and

The Attorney General

Respondent/Defendant

Appearances:

Mr. Horace Fraser for the Appellant/Claimant

Ms. Georgis Taylor—Alexander, Solicitor General for the Respondent/Defendant

ORAL JUDGMENT

EDWARDS, J.A.

1 This is an appeal against Cottle J's award of $5,793.39 to the appellant on 20^th March 2008, for damages, following the trial of the claim brought by the appellant for breach of his employment contract with the Government of St. Lucia as a Magistrate.

2 The facts as disclosed in the judgment of Cottle J are as follows:

• (a) The claimant was employed by the Government of St. Lucia as a magistrate. The term of engagement was to have been for one year from 4^th January 2000, to 3^rd January 2001. The written contract between the parties was not executed until 23^rd February 2000.

• (b) Subsequently, the claimant and the Government entered into consecutive one year contracts in 2001, 2002 and 2003. Each contract was in the form of a written document executed after the expiry of the previous term of service and expressed to operate retroactively.

• (c) At the expiration of each contract the claimant would continue working and sometime later his employment would be regularized by the execution of a contract. However this state of affairs changed without warning.

• (d) The claimant's 2003 contract expired on 3^rd January 2004. He continued to work. He fully expected that as he had indicated a willingness to enter into another one year contract and the Government had given no indication of any inclination to the contrary, he would in due course be presented with a written contract to sign. But it was not until 7^th May 2004, that the claimant became aware that he had been appointed to the post of magistrate not on a one year contract, but on a month to month basis for the period of 4 months with effect from 2^nd January 2004, and that his last monthly contract came to an end as at the 30^th April 2004.

• (e) The claimant stopped working on 7^th May 2004. Understandably aggrieved he brought a claim for breach of contract.

• (f) The learned trial judge found that the dismissal of the claimant constituted a breach of his contract for one year; and that the terms of the contract are certain as they are the same terms as applied in the 4 previous annual contracts. Thereafter the judge reasoned:

"The Court of Appeal has held that in a case where the facts were similar inJudicial and Legal Services Commission v Horace Fraser Civil Appeal 24 of 2005 from St. Lucia, that the Claimant there was entitled to one month's salary in lieu of notice. I apply the reasoning of Barrow JA in that case. "it is settled law that where a party to an employment contract is given the right in the contract to terminate and he wrongfully terminates in breach of the contractual provision for termination, the damages that he will be liable to pay for wrongfully terminating will not be greater than he would have been liable to pay had he terminated in accordance with the termination clause in the contract." I award the Claimant $5,793.39 being one month's salary with the legal officer's allowance included. Costs to the Claimant is awarded at $5,000.00 pursuant to the Order at the Case Management Conference."

3 The grounds of appeal are: (a) that the trial judge erred in not awarding the appellant three months pay in lieu of notice; (b) that the trial judge erred in not awarding the appellant annual leave in respect of his contract for the year 2004—2005; (c) that the trial judge erred in not awarding the appellant his 25% gratuity for the contract year 2004—2005; and (d) that the trial judge erred in not awarding the appellant interest on the damages award. The appellant sought from this court an award based on three months pay in lieu of notice; annual leave for the period 2004—2005; 25% gratuity for the contracted year 2004—2005; interest at 6% from the date of the filing of the claim; cost in this court and in the court below; and any order which the court deems fit.

4 The respondent who also filed a notice of appeal against the judgment of Cottle J, requested leave to withdraw this notice of appeal earlier on in the sitting. Consequently, only the appellant's appeal proceeded and the court heard the oral submissions of learned counsel, Mr. Fraser and also had the benefit of his written submissions and authorities.

5 It became very evident to the court before the hearing that though Mr. Fraser was not relying on the recent Privy Council authorityAngela Inniss v Attorney General of Saint Christopher and Nevis2; this authority was now applicable to the assessment of the damages in the appellant's case instead of the approach previously advocated by the Court of Appeal in Judicial and Legal Services Commission v Horace Fraser. The Privy Council held in Inniss for 2 that Ms. Inniss, whose contract of employment for 2 years as a Registrar of the High Court of St.

Christopher and Nevis was prematurely and wrongfully terminated after one year and a little less than 9 months by the Government of the Federation, was entitled to an award of damages comprising: the salary that she would have earned had she...