Reference no: EM132920461

John Cross has been a close friend of your father for many years. In fact you call him Uncle John. As long as you can remember Uncle John had worked as a Quantity Surveyor with a company called Building Contractors and Development Company (Jamaica) Limited (BCD). A few weeks ago you overheard him talking to your father about the likelihood that the company would close. BCD carries out infrastructural and residential developments and oftentimes gets contracts from the Government of Jamaica. John has worked continuously for fourteen (14) years and over the years he was provided with pay slips each month where the company deducts NIS and NHT contributions as well as PAYE income from his salary and remits same to Tax administration Jamaica. He also contributed to the company's pension plan as well as being a part of the Medical and Group Life Insurance Plan provided by Sagicor. He was however asked to sign a new contract every year, for "accounting purposes" Save for one week suspension which was imposed after a disciplinary hearing during the first year of his employment arising from an incident with a subcontractor who had disputed his appraisal of one of his jobs, he continued to work diligently with only the occasional day off near the holidays annually; even when he was resigning the new contract each January he was not allowed the usual "two week contract break". In the year following the suspension, to his delight John had been sent to the Australian Technical Institute by the company to be trained in Project Management. You recall the time vividly as your father not only took him to the airport but went to collect him at the end of the course and Uncle John had taken back a boomerang for you that you still have to this day. The Australian training programme was part of a capacity building initiative on the part of BCD as at the time it was confident of getting several contracts under the "Pay Toll for Good Road" Highway project that was recently approved by the Government. Upon his return, John not only reported directly to the head of the company, Mr. Sydney Brewster, he was also bonded to work for the company for five (5) years, as part of his contribution for the cost of the training, a time that he gladly spent gaining more experience as he did not have the resources to repay the tuition costs. However things did not work out quite as they expected. The high security costs (amounting to several million dollars per year to formal security firms as well as extortionists) made it difficult for the company to make a good profit. After a number of years Mr. Brewster a citizen of Australia, decided that he would close down the business and return home. Rumours of the imminent closure surfaced several months before any official word was received from the company. On hearing these rumours, Uncle John has asked you to estimate his expected redundancy payment. He was elated when you informed him that you had verified with your labour and employment law lecturer that based on his years of service he was due to receive in excess of $10 Million in severance benefits. When you arrived home on April 30, 2021, Uncle John was waiting for you. From the expression on his face as he handed you an envelope it was clear that he was in a great state of distress. On opening the enclosed letter, your eyes caught the following lines carefully highlighted with a green highlighter: ...as is the norm in the construction sector, you work under an individual contract of employment. As an independent contractor, you are therefore not entitled to any benefits from the company under the circumstances such as the impending closure. However in recognition of your long years of service, we are inviting you to a farewell dinner for our beloved Chairman Mr. Sydney Brewster to be held at the Spanish Court Hotel, on Friday May 14, 2021; the dress code is business casual. In response to your queries John indicated that all of the other quantity surveyors who worked with the company had received similar letters. He was also informed you that with the exception of a small group of clerical and administrative workers who worked in the office, none of the former employees of BCD were to be given severance payments. None of the workers had been members of a trade union and in the absence of this type of representation he did not feel particularly optimistic.

Question 1

Making reference to appropriate statutes and principles enunciated in decided cases, explain why you would or would not agree with the position of the company and advise John as to what steps he should take in respect of all aspects of the matter.