Roselyn Charles v Grenada Airports Authority
|05 September 2023
|GD 2023 HC 23
|CLAIM NO. GDAHCV2018/0219
|High Court (Grenada)
The Hon. Mr. Justice Raulston L.A. Glasgow High Court Judge
CLAIM NO. GDAHCV2018/0219
IN THE SUPREME COURT OF GRENADA
AND WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
Mr. Nazim Burke for the Claimant
Mr. Kristopher Ross Fields for the Defendant
The claimant, Ms. Roselyn Charles (Ms. Charles) has approached the court seeking various reliefs for alleged breaches of a contract of employment made between herself and the defendant (the Authority). Ms. Charles' complaints are in respect of alleged breaches of her entitlement to certain emoluments.
On 1 st August 1984, Ms. Charles began employment with the Authority in the office of Air Traffic Control (ATC) Officer. Prior to that date, Ms. Charles was employed as a civil servant appointed by the Public Service Commission of Grenada (PSC). Her engagement with the Authority came about after she was seconded to the Authority by the PSC. Ms. Charles continued working with the Authority further to several contracts from the time of her secondment until 5 th May 2016 when she retired.
In her witness statement filed on 15 th May 2020, Ms. Charles outlines the various posts which she held with the Authority as follows –
(1) 1984 – Promoted to ATC Supervision (C03)
(2) 1995 – Promoted to Senior Air Traffic Controller (C04).
(3) 2006 – Promoted to Assistant Manager of Air Traffic Services (Assistant Manager, ATS).
(4) 2011 – Promoted to Manager of Air Traffic Services (Manager, ATS).
It is the latter promotion that has caused contention between the parties which contention has led to these proceedings.
Ms. Charles' claim is that the Airports' Authority failed to follow certain established practices and procedure relating to the process of acting in a higher position. She cites the following practices and procedures that should have been applied by the Authority to her contract as Manager, ATS –
(1) “When an officer acts in a higher position the officer will be paid an acting allowance of half the difference between their current salaries and the salary of the substantive holder of the higher post while so acting; and
(2) The unpaid difference in the salary for the period of acting will be paid to the officer on being confirmed in the position.” 1 Ms., Chares refers to this payment as a “back pay”.
At the time that Ms. Charles acted as Manager, ATS the substantive holder of the post held a contract wherein he was paid the sum of $8684.50 per month. Ms. Charles was paid an acting allowance of $1515.50 which sum was half the difference between her salary of her substantive post of Assistant Manager, ATS in the sum of $5635.50 and the salary of $8684.50 being paid to the substantive holder of the post of Manager, ATS.
Ms. Charles explains that when she was confirmed in the post of Manager, ATS on 1 st April 2011, her appointment was further to a letter dated 10 th April 2011 (the agreement) wherein a salary of $6800.00 was quoted. Instructively for these present purposes, Ms. Charles was asked to sign the letter which stated that it contained all the terms and conditions appertaining to the agreement between the parties and that it superseded all previous such agreements. Ms. Charles acknowledges that she signed the letter as requested by the Authority. However, she stresses that even though she signed the letter, she omitted to tick a box contained in the letter as to whether she agreed to the terms stated therein.
Ms. Charles' first concern is that she anticipated being paid the salary of the previous holder of the post of Manager, ATS. She complains that the Authority discriminated against her by failing to pay her the salary paid to her erstwhile colleague in the office of Manager, ATS. Ms. Charles claims that she legitimately expected to be paid the same salary as the previous holder of her office. By reason of the failure to follow the alleged practices and procedure of paying her the same salary as her predecessor in office, she asserts, she has lost the benefit of this money along with all increases in salary that would been paid over the years. In her closing submissions she further stated that the discrimination was due to the fact that she is female, and her former colleague is male. This treatment, she says in her closing submissions, was a patent breach of the Employment Act, Cap. 89 of the laws of Grenada (the Employment Act).
In her witness statement, Ms. Charles refers to Mr. Glen Forsyth who acted in the post of Manager of Maintenance during the same period that she acted as Manager, ATS and who was later confirmed in the post of Manager of Maintenance. Ms. Charles observed that Mr. Forsyth “was treated in accordance with the established practice and procedure… He got half the difference between his salary and the previous Manager's salary for acting in that position and received the full salary when confirmed in that position.” 2
Ms. Charles references Ms. Alana Paul, Ms. Hernel Panchoo and Mrs. Christina Joseph, who also complained about their salaries. Management thereafter adjusted those salaries. In respect of Ms. Paul and Ms. Panchoo, the union representing that category of workers got involved in the fray and negotiated a settlement with the Authority on the question of their salaries. Those two were paid the same salary as their predecessor in office after negotiations with the union.
Ms. Charles also asks the court to find that she signed the agreement by mistake since there is no way that she would have properly signed the same with a salary that was less than the salary paid to the previous office holder. In fact, she says, she complained to the Human Resources Department and several of her superiors at the Authority about the matter but to no avail. 3 At paragraph 6 of the statement of claim, Ms. Charles sets out a table detailing the sums that she was allegedly deprived of by reason of the Authority's alleged failure to pay her the same salary as the previous office holder and for unpaid salary which amounts to $142, 821.26.
Besides her complaint about the salary paid to her, Ms. Charles also pleads that the Authority improperly and/or illegally calculated and paid her retirement benefits.
She explains at paragraph 7 of the statement of claim that –
“… it was also a term of the Claimant's employment with the Defendant that the Claimant will be paid a Retirement and Pension Benefit comprising a Past Service Benefit effective June 1, 1998 in the sum of $26,721.00 at 5% per annum compounded: and a contributory Pension Plan Benefit of the basis of an equal monthly contribution by the Claimant and the Defendant of 5% of the Claimant's gross salary with effect from June 1998 until retirement, which was being invested by the Defendant in an interest bearing account with the National Commercial Bank (now Republic Bank (Grenada) Limited) at an interest rate of 4% per annum compounded for the benefit of the Claimant”.
Ms. Charles' case is that the Authority erroneously calculated the Past Service Benefit (PSB) due to her. In respect of the pension benefit, she explains that “ this did not take account of the unpaid salary and acting allowance set out above and the invested rate of 4% per annum, which the Claimant has calculated to be $123,056.58 being employer and employee contribution and accrued interest of $44,315.01.” 4
Ms. Charles makes the further charge that her retirement benefits were improperly adjusted for income tax when she was not liable to pay the same. The following reasons are offered for this view–
(1) Being a public officer on secondment to the Authority, her retirement benefits were in effect a gratuity and as such the same were exempt from the deductions for income tax pursuant to section 25(1) (i) of the Income Tax, Cap 149 of the Laws of Grenada (the Income Tax Act);
(2) Tax was applied to the interests earned on the PSB and the contributory pensions payments, which were in fact deposits and as such not liable to taxation.
(3) The salary for the period May 2016 being $1,026.60 and the payment for her earned vacation leave in the sum of $3,079.82 were erroneously taxed as her PSB and pension benefits.
Ms. Charles's further claims that even if income tax is to be deducted from her retirement benefits, the Authority is liable to repay her these sums as the Authority failed or refused to register the pension plan with the Comptroller of Inland Revenue as an approved pension plan in accordance with section 48 of the Income Tax Act. Ms. Charles calculates her losses in respect of the alleged breaches of her rights to retirement and pension benefits in the sum of $77,301.41.
At some point in the exchange of correspondence between the parties about their differences, the Authority acknowledged that it did not properly calculate some of Ms. Charles' salary. It later paid these sums to Ms. Charles. Those sums are referred to in this judgment as retroactive salary. In its submissions before the court at the further case management conference held on 10 th August 2023, the Authority explains the retroactive salary as comprising annual salary increases paid over the years to its workers. Ms. Charles does not dispute this characterization of the retroactive salary paid to her but wishes the court to draw certain inferences from those payments. Those inferences will be addressed below. The parties agree that the annual increases in salary over the years 2011 to 2016 when Ms. Charles served as Manager, ATS amounted to about 3% per annum.
In her witness statement filed on 15 th May 2020, Ms. Charles explains her concerns about the tax adjustments made to her pension benefits and to the retroactive salary as follows –
(1) The interest...
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