Adderley v First Caribbean International Bank

• Jurisdiction: Bahamas
• Judge: Thompson, V.P.
• Judgment Date: 04 December 2015
• Court: Industrial Court (Bahamas)
• Docket Number: IT/NES/1530/10
• Date: 04 December 2015

Industrial Tribunal

Thompson, V.P.

IT/NES/1530/10

Adderley

and

First Caribbean International Bank

Appearances:

Mr. Frank Carter Labour Consultant for the applicant.

Mr. Ferron Bethell of Counsel for the respondent.

Employment Law - Industrial dispute — Termination of employment — Dismissal — Appeals Committee — Collective agreement — Unjust enrichment — Whether committee acted ultra vires its authority — Whether decision of committee final and binding — Whether applicant compensated unjustly.

Thompson, V.P.

1 This matter came on for hearing on May 06th, 2015. The representative for the applicant and counsel for the respondent agreed that the issues were limited and decided to prepare submissions based on the issues/facts. Having read the submissions of the parties we opine as follows, firstly by setting out the facts.

2 The applicant is claiming unfair dismissal and discrimination which is how it was filed on the trade dispute.

THE AGREED FACTS:

3 The applicant admits that she willfully brought on to the employer's premises a box cutter with which she intended to damage another employee's vehicle. This is what she advised her superiors on December 08th, 2009. In fact for a clearer picture and as there are agreed facts, we now set out the agreed facts or put another way, “FACTS WHICH ARE NOT IN DISPUTE.”

FACTS NOT IN DISPUTE:

• A. “On the 8th December, 2009, in breach of Section 3.2 of the respondent's Code of Conduct and Code of Discipline, the applicant brought a box cutter to her work premises and made a threat to slash her supervisor, Mychelyn Watson's, car tire because she thought she (Mychelyn) was picking on her.

• B. The applicant was immediately suspended with full pay and benefits pending an investigation into the matter.

• C. A Disciplinary Hearing was heard on the 26th, January, 2010, and a decision was thereafter given by the Adjudicator, Sonia Rutherford, on the 4th February, 2010. Ms. Rutherford determined that the applicant's act was deliberate and intentional and displayed a conscious decision to use an instrument to cause damage and cause harm. However, as the applicant had showed remorse, the applicant should be terminated with notice.

• D. The applicant was thereafter terminated with notice effective the 26th February, 2010.

• E. There was an appeal of the decision of the Adjudicator's decision and an Appeals Committee Hearing was held on the 10th May, 2010. The Committee rendered its decision on the 7th June, 2010 and recommended that the applicant be paid Six (6) months' salary, four (4) of which had already been received at the date of the decision of the Committee (26th February to 8th June, 2010). Therefore, there was a remaining payout balance to the applicant, in the amount of two (2) month's salary.

• F. The applicant was paid $5,820.19 which represented, two (2) weeks' notice; two (2) weeks for every year of service; two (2) months' salary; eight (8) days vacation pay and salary from June 1st — 7th, 2010.

• G. The decision of the Appeals Committee was final and binding pursuant to Article 14.8.1 of the Collective Agreement.

• H. Article 52.2 of the Collective Agreement mandated that non supervisory employees who have been employed for twelve (12) months' or more are entitled to two (2) weeks' notice or two (2) weeks' in lieu of notice and two (2) weeks basic pay (or a part thereof on a pro rata basis) for each year up to thirty (30) weeks.

• I. One of the duties of the Appeals Committee was to determine whether the decision/finding was inappropriate particularly with reference to the Bank's policies, procedures and terms of the Collective Labour Agreement.”

FACTS NOT IN DISPUTE:

4 Having set out the facts which are not in issue, we turn to what we deem to be the relevant issue which is answering the question “whether the Appeals Committee acted ULTRA VIRES” its authority and duties as it relates to the Industrial Agreement which was valid and applicable at the time. The Industrial Agreement was in fact and in law registered and made between the respondent and the Bahamas Financial Services Union (“the union”).

5 Section 51 (1) of the Industrial Relations Act (“The IRA”) binds all parties. It states;

• (a) the bargaining agent and every employee in the bargaining unit for which the bargaining agent has been recognized;

• (b) the employer who has entered into the industrial agreement;

• (c) any person succeeding (whether by virtue of a sale or other disposition or by operation of law) to the ownership or control of the...