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David Dumont -v- Bermuda College

January 2018 Employment

BERMUDA

SUPREME COURT

CONTRACT OF EMPLOYMENT – CONSTRUCTION OF COLLECTIVE AGREEMENT – WHETHER PLAINTIFF ENTITLED TO ON-CALL PAYMENTS

The plaintiff, David Dumont, was employed by the defendant, Bermuda College, as a Facilities and Security Supervisor from 13 February 2012 until 23 May 2017. In June 2017 the plaintiff claimed damages for breach of contract. The breach alleged was the College’s refusal to pay him an allowance for being “on-call” outside normal working hours. The amount claimed was $62,749.28 plus interest.

The defendant said the plaintiff was not entitled to on-call pay because he was never ‘on call’ within the meaning of his contract of employment and was not contractually required to be so.

Contract of Employment

The plaintiff was issued with an offer letter on 27 January 2012, which stated that the offer letter, together with the current Collective Agreement and the Bermuda College Personnel Policies constituted his statement of employment with the College. He accepted that the statement of employment was a contract of employment, which he signed on 2 February 2012. The parties agreed as to the terms of the contract: where they disagreed was as to the meaning of the terms.

The Collective Agreement which formed part of the statement of employment was the Bermuda College Faculty and Support Staff Agreement, which the defendant negotiated with the Bermuda Public Service Union (“BPSU”). The relevant provision of the Collective Agreement is Article 64, which deals with on-call and call-out payments and states: “Employees who are required as a condition of their employment to be ‘on-call’ may be required to remain ‘on-call at their home or such other place of their choice notified in advance by the head of their department or they may be recalled by telephone for a period of time in addition to their prescribed hours of duty…” It goes on at 64.3 to state: “An employee who is required to remain ‘on-call’ shall be paid an allowance of $38.83 per shift…

 

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David Dumont -v- Bermuda College

 

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