Zetina v Galen University
| Jurisdiction | Belize |
| Judge | Abel, J. |
| Judgment Date | 21 February 2014 |
| Court | Supreme Court (Belize) |
| Docket Number | Claim No. 142 of 2013 |
| Date | 21 February 2014 |
Supreme Court
Abel, J.
Claim No. 142 of 2013
Ms. Nazira tic Myles, counsel for the claimant.
Ms. Pricilla. J. Banner, counsel for the defendant.
Employment Law - Contract of service — Breach — Summary dismissal — Wrongful dismissal — Constructive dismissal — Quantum
The present claim is brought by the claimant, a Director of International Marketing and Partnerships of a University in Belize against the defendant, her employer for breach of a written contract of employment dated 4th October 2012 and for wrongful termination of her employment on the 21st December 2012. In the alternative for damages for her constructive dismissal.
The claimant through the President of the defendant, the Witness Dr. Louis Zabaneh (“Louis Zabaneh”), had been well known to each other prior to the claimant taking up employment with the defendant.
The claim arose out of a breakdown in the relationship between the claimant and the President of the defendant very shortly after the claimant commenced working for the defendant with the claimant alleging that she was terminated, and with the defendant alleging that the parties had agreed to settle their differences or the claimant had abandoned her post and filing a counterclaim for damages for breach of contract.
The cause of the breakdown is therefore very much in dispute with the claimant and defendant making allegations and counter allegations against each other.
It was agreed by the parties that under a written contract dated 4th October 2012 and signed by the claimant on the 8th October 2012 (“the Contract”) the claimant was employed by the defendant as the Director of International Marketing and Partnerships for the period of one (1) year commencing 1st November, 2012 and ending on 31st October, 2013; and was required to reside in the United States.
That under the contract, which set out the terms and conditions of the claimant's employment with the defendant, the claimant's position entailed:
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(1) the recruiting and subsequent enrollment of study abroad semester and intensive students, including those coming from existing partnerships, for example, but not limited to: CCIS. U Indy, ProWorld, Grenfeld, U WO and NMSU, along with the Go Abroad and Study Abroad Websites; and
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(2) pursuing and developing new partnerships with US, Canadian and other International Universities (which lead to enrollment of students to the defendant).
That the terms of the Contract also provided:
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(1) that the claimant was to be compensated at a fixed monthly salary of BZ$7,000.00 with disbursements being made at the end of each month for the months specified.
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(2) that under the terms of the Contract the claimant would be approved two round trip, coach, airline tickets per year, and the claimant would be provided:
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(a) with monthly payments of not more than US$500.00 in accordance with the terms of a vehicle purchase agreement (to he approved entirely by the defendant prior to final signature) in order to equip her with a vehicle;
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(b) a telephone allowance of US$250.00 per month;
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(c) US$60.00 per day for food and incidentals when conducting business trips for more than 6 hours or more than 180 miles from her U.S. residence (once invoices were presented in advance);
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(3) for a commission package under which the claimant would be paid on the tuition collected as follows: 5% for the first ten (10) students recruited and enrolled; 10% for the next ten (10) students recruited and enrolled: and, 15% for those above the twenty (20) recruited and enrolled. All these students must be from new schools.
It is accepted by counsel for the parties, and there is clear evidence, that the parties agreed that the claimant would depart Belize for the United States of America by 15th January, 2013.
The claimant was never relocated to the United States of America and it was never doubted that the defendant was responsible for making the arrangement for such travel and relocation.
It is also accepted that the claimant did not receive a Staff Manual nor the Employee's Handbook of Policies at the commencement of employment nor at any time during her employment and the claimant was informed that the Staff Manual/Employee's Handbook of Policies (which is one document) was being revised by the defendant.
The claimant commenced proceedings against the defendant by way of claim form & Statement of Claim filed on the 7th March, 2013.
The claim form seeks the following relief against the defendant:
(1) Damages for breach of contract and wrongful termination oilier employment:
(2) In the alternative, damages for constructive dismissal;
(3) Special Damages in the sum of $83,370.90
(4) Interest on any Damages found due to the claimant pursuant to section 166 of the Supreme Court of Judicature Act, Chapter 191;
(5) Costs
(6) Any further or other relief the Court deem just.
In support of her claim, the claimant relied on the Testimony of the claimant; and in addition, the character evidence of the witness Marta Yolanda Castillo (“Marta Castillo”), the testimony of the witness Michelle C. Arnold (“Michelle Arnold”) and the witness Deborah Yvonne Middleton (“Deborah Middleton)
The defendant relied on the testimony of Louis Zabaneh, who at the time of the hearing was the President of the defendant, and the evidence of Shamayne Avila (the Chief Financial Officer of the defendant).
It was generally agreed that the following issues arise for determination:
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(a) Was the claimant wrongfully terminated by the defendant on the 21st December, 2012 or did the claimant and the defendant agree on the 21st December, 2012 to settle their mutual impasse amicably?
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(b) In the alternative was the claimant constructively dismissed from her post or did the claimant abandon her post?
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(c) If the claimant was wrongfully terminated or constructively dismissed from her post. is the claimant entitled to the damages claimed for breach of contract?
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(d) If the claimant abandoned her post, is the defendant entitled to damages counterclaimed for breach of contract?
Subsidiary to these issues, were many factual issues relating to the background facts including:
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(a) Whether the claimant was happy at the Embassy prior to leaving
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(b) Whether the claimant approached the defendant or vice versa prior to and in relation to her possible employment by the defendant?
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(c) What were the existing international partnerships which the defendant had with US universities and what was the nature of any such partnerships (i.e. were the students of such US partner universities paying or non-paying). In particular, would such partnerships impact the agreed commission structure payable to the claimant or the recruitment function of the claimant?
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(e) Did any moratorium which the defendant had in relation to student exchanges involve any misrepresentation by the defendant to the claimant such that it impaired the claimant's responsibilities under her contract with the defendant?
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(f) Did any misunderstanding about Louis Zabaneh's comments on the 3rd December 2012. about a COBB: Conference, San Pedro, Ambrgris Caye, reasonably have any impact on the contractual relationship between the parties (i.e. was Louis Zabaneh unreasonably targeting the claimant or did the claimant's perception that she was being targeted provide reasonable cause for Louis Zabaneh to question the claimant's decision-making ability or her ability to rationalize such as to affect the contractual relationship of the parties, as Louis Zabaneh asserted)?
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(g) Did the misunderstanding which arose on the 5th December 2012 between the claimant and Louis Zabaneh (in relation to a conversation which the claimant overheard between Louis Zabaneh and his secretary) and the misunderstanding or perceptions which resulted in a further fouling of the relationship between the two of them, of any relevance to the contractual relationships of the parties?
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(h) Did Louis Zabaneh inform the claimant, at a meeting on the 17th December 2012, that she was not wanted around other staff members, as the claimant alleges?
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(i) What conversation took place at the meeting on the 21st December 2012 between the claimant and Louis Zabaneh?
Most of these issues of background fact can be resolved by me immediately, by preliminary findings of fact and a summarily disposal of same, as they provide no real difficulty; and in any event they are not directly pertinent to the central issues for determination in this case.
I now set out at length the general background and where indicated make appropriate findings of fact.
The defendant is a university situate at mile 62.5 George Price Highway, San Ignacio, Cayo District, Belize.
The Witness Louis Zabaneh is the President of the defendant and the Chairman of a Board of Trustees of the defendant which functions in an advisory capacity to the defendant. In relation to the employment of Directors of the University including the claimant, Louis Zabaneh makes the decision about such appointments.
At all times relevant to this case, the student base of the defendant included study abroad semester and intensive students including those coming from existing university partnerships from abroad.
The defendant had, or in any event represented, that it had partnerships with other Universities, including within the USA, and provided its services to them and was interested in pursuing and developing new such partnerships, including with US Universities.
In furtherance of the defendant's interest in pursuing such and further partnerships, the defendant initially had the witness Deborah Middleton from January 2011, take care of such international students and build the relationships between the...
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