Tuesday, 26 November 2013

Law report - wrongful dismissal

Woods-Forde v The Bermuda Hospitals Board [2013] SC (Bda) 77 Civ

The Plaintiff worked at the hospital, and was the subject of a disciplinary investigation arising from an allegation concerning a personal dispute with a work colleague. The plaintiff denied the allegation and was later fired for gross misconduct both for the personal dispute itself and for lying about it.

She claimed for wrongful dismissal on the basis that her conduct was not gross misconduct such as to justify firing her. At trial it was conceded by the hospital that the actual allegation that had resulted in an investigation was not itself gross misconduct, and they relied only on the lying about the allegation.

Justice Hellman HELD that the denial was not gross misconduct (at [49]-[54]). The hospital's policies set out the type of dishonesty which it considered to be gross misconduct, which were essentially financial dishonesty.

He awarded her three months' salary in damages, which he said was equivalent to a suitable period to enable her to find another job ([62]-[65]), taking into account her poor health and the difficult labour market.

The plaintiff was also diabetic, so also claimed damages for the loss of her health insurance and having to finance her own overseas medical treatment. The judge agreed that these were damages that could be claimed, as when she entered into employment, the parties could have anticipated that wrongful dismissal would result in her losing the benefit of the health insurance [69]. He calculated the loss by looking at her medical expenditure over the year following her dismissal, and then pro-rating it to the three month period that he found was a reasonable notice [72].

The plaintiff also claimed damages for loss of reputation, as it is more difficult to find a job when you are fired in such circumstances. However, this would have involved the court choosing not to follow the House of Lords case of Addis. Justice Hellman acknowledged that Addis has been criticised but that it is not for him to depart from House of Lords authority at the Supreme Court level ([73]-[76].

Comment - it is surprising that the issue of loss of health insurance has not come up before on termination of employment. This judgment gives a helpful guide as to how such a loss might be calculated in suitable cases.

Child of Bermudian unable to travel?

The Royal Gazette has published an article about the problems of a Bermudian woman getting Bermudian status or a passport for her son, as she only acquired Bermudian status after her son was born.

She says she is unable to travel with her son as she has been unable to obtain travel documents for him.

If the circumstances of the case are as reported, there should be a relatively simple procedure to get a British Overseas Territories (BOT) passport for her son. She could ask the Governor to register him as a BOT citizen, and she would then be able to get a passport for him.

The story reports that the mother was not Bermudian at the time of birth, but the father was. Provided that paternity can be proven then the child should be entitled to Bermudian status from birth.
 I also wonder whether the mother might have an argument for claiming that she was entitled to Bermudian status at birth. She was born overseas, but if her Bermudian dad was domiciled in Bermuda at the time of her birth (which doesn't necessarily mean he was living here) then she would also be Bermudian from birth and so her son would be too.

Even if her son cannot get Bermudian status from birth, he will be deemed to be Bermudian until he turns 22, so it is not too much of a problem right now. The key thing is the passport, which shouldn't be difficult to get.

Tuesday, 12 November 2013

Law report - naturalisation as British Overseas Territories citizen

Stevens v The Governor and the Deputy Governor [2013] SC (Bda) 75 Civ

The applicant was the husband of a Bermudian who applied to the Governor to be naturalised as a British Overseas Territories citizen on the basis that he met all the requirements, including that he had no restrictions on the period for which he was allowed to remain in Bermuda for.

The Deputy Governor refused the application on the basis that the conditions placed on the husband of a Bermudian in order to continue to enjoy the spouse's rights amounted to such restrictions.

Hellman J held - being guided by 30 years of established nationality law practice in the UK - that restrictions on the period did not have the meaning given to it by the Deputy Governor. He quashed the refusal and ordered the Deputy Governor to reconsider. He noted that there is still discretion in whether or not naturalisation would be granted.

Comment - this is a welcome judgment which helps to clarify when somebody is able to naturalise. Naturalisation enables the person to acquire a Bermudian passport, which is helpful in particular for people from countries who find it difficult to obtain visas when travelling. It can also simplify the process of obtaining Bermudian status for non-Commonwealth citizens. Naturalised BOT citizens are also deemed to belong to Bermuda under the Constitution, although it is unclear what effect this actually has.

This judgment might affect other people who had their naturalisation applications refused. If an application is refused, the reasons must be communicated to the applicant, and the refusal must be a reasonable decision.