Steven Kent Jervis and KST Investments Limited v Victor John Skinner (Bahamas)

On a second appeal, concurrent findings of fact should not be disturbed unless exceptionally a miscarriage of justice or a legal or procedural violation is shown. At common law, summary dismissal for gross misconduct requires conduct that so undermines the trust and confidence inherent in the particular employment contract that the employer need no longer retain the employee. Excessive delay makes a judgment unsafe only where errors probably or possibly attributable to the delay are shown and it would be unfair or unjust to let the judgment stand. Incomplete negotiations about a payment do not create a binding agreement. Contractual bonus and profit-share entitlements may nevertheless remain due, with quantum assessed according to when the entitlement accrued.

This was a second appeal from the Supreme Court of the Bahamas, where the judge held that the employee had been wrongfully dismissed and awarded damages, a bonus and sums claimed under a profit-sharing agreement. The Court of Appeal dismissed the appeal on most issues, but held that the profit-sharing agreement had been brought to an end by the employer’s repudiatory breach and remitted post-termination damages for assessment.

The Privy Council considered concurrent factual findings, the common-law test for summary dismissal, contractual bonus entitlement, repudiatory breach of the profit-sharing agreement, an alleged fixed agreement for a $250,000 profit share, the adequacy and tone of the judgment, and delay in its delivery.

Lord Clarke delivered the judgment of the Board. The appeal was dismissed on all issues except the alleged agreement for a fixed $250,000 profit share, on which it was allowed.

1. Concurrent findings and factual review. On a second appeal, the Board should not review evidence where two courts have made concurrent findings of fact unless there is exceptionally a miscarriage of justice or a violation of law or procedure. The judge had misdirected himself by applying the statutory test under the Employment Act 2001 rather than the common-law test. However, he had asked the essentially correct factual question whether the employee had used company labour and materials without approval and without intending to pay. The findings rejected dishonesty and were properly reached. There was no basis for appellate intervention.
2. Dismissal and the profit-sharing agreement. The common-law test, correctly stated in Neary v Dean of Westminster [1999] IRLR 28, requires gross misconduct so undermining the trust and confidence inherent in the particular contract that the employer should no longer be required to retain the employee. The conduct found did not meet that test. The employee was wrongfully dismissed, had not repudiated the profit-sharing agreement, and the employer’s termination of it was repudiatory. The employee was also contractually entitled to a $25,000 bonus.
3. Delay and judgment quality. Applying Cobham v Frett [2001] 1 WLR 1775, excessive delay requires a fair case that errors probably or possibly attributable to the delay exist, and that it would be unfair or unjust to let the judgment stand. The delay was excessive, but the transcripts and comprehensive reasoning enabled careful scrutiny. The judgment was not unsafe. A judge need not determine every submission separately, provided the essential issues are resolved.
4. The alleged $250,000 agreement. The evidence established, at most, an offer amid continuing negotiations about a larger payment and possible loan arrangements. The discussions were incomplete, so no binding agreement or accrued right to the fixed sum existed. The employee remained entitled to his net 2004 profit share, but the amount and whether it was due as monies owed or damages depended on when the entitlement accrued. The matter was remitted to the Registrar for determination.

• Privy Council: Appeal dismissed on all issues except issue iv, concerning the alleged fixed $250,000 profit share, on which the appeal was allowed. The net 2004 profit share was remitted to the Registrar for assessment.
• Court of Appeal of the Commonwealth of the Bahamas: Appeal dismissed with costs, subject to holding that the profit-sharing agreement was wrongfully terminated on 10 January 2005 and that post-termination damages should be assessed by the Registrar.
• Supreme Court of the Bahamas: Judgment for the employee on wrongful dismissal, bonus entitlement and sums awarded under the profit-sharing agreement, with interest, costs, declarations and an account.