Aketa Judith Smith v West Bay Management Ltd (d.b.a. “Sandals Royal Bahamian Resort”)

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 02 March 2012
• Docket Number: No.1261 of 2008.

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Aketa Judith Smith

Applicant

and

West Bay Management Limited (d.b.a. “Sandals Royal Bahamian Resort”)

Respondent

Before:

His Honour Harrison L. Lockhart, President

No.1261 of 2008.

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Myles K. LaRoda Esq.

Counsel for the Respondent — Adrian Hunt Esq.

DECISION AND REASONS

The Facts:

1 The Applicant commenced employment with the Respondent on September 1, 2006 as a spa supervisor.

2 She was promoted to Assistant Spa Manager on April 1, 2007.

3 The Applicant alleges that she was wrongfully and/or unfairly dismissed by the Respondent on or about September 1, 2008.

4 She claims damages for wrongful and/or unfair dismissal.

5 The Respondent alleges that the Applicant was summarily dismissed for just cause insofar as she had committed acts which were repugnant to its fundamental interests and ergo the Respondent “could no longer repose any trust and confidence in [her] to conduct herself appropriately.”

6 In its Defence the Respondent set out events leading to its foregoing determination as follows:

• “1. On August 9, 2008 the Applicant, an Assistant Spa Manager with the Respondent company, prevented her supervisor Jackie Smith from ensuring that guests on the island were provided their spa treatments on time by detaining therapist Daslyn at the main spa to give her a personal pedicure. She further instructed receptionist Robertha not to answer Jackie's phone calls inquiring as to the whereabouts of Daslyn. Additionally, the Applicant intentionally told supervisor Jackie that she did not have a service at 12:00pm when in fact she did.

• 2. The company provided a 50% discount and cold beverage to. the guests affected by the Applicant's misconduct.

• 3. On August 18, 2008 the Applicant was requested by her supervisor Jackie Smith to assist in ensuring that therapists were not double booked between the island and the main spa which was an ongoing problem that Jackie had brought to management's attention previously. The Applicant refused to assist her, arose from her seat and shut the door in the supervisors face whilst she was speaking to her.

• 4. On August 26, 2008, when called into a meeting with Human Resources Manager Carolyn Major, Jackie Smith and James Hilton, the Applicant called Jackie a “beast”. The Applicant by various actions above violated… obligations listed in the Code of Conduct in the Respondent's Handbook….”

The Evidence:

7 The Applicant testified that first of all, Jackie Smith was not her supervisor. She was however supervisor of the island spa facility.

8 She said that her salary at the time of her termination of employment was $1,516.00 per month, and she also received 1.5% of net profits from the Respondent monthly in arrears. Her monthly commission ranged between $1,000.00 and $3,500.00.

9 She said that she now operates her own spa business which she began in February of 2009. She noted however that her earnings from that venture only range between $100.00 per month to $1,000.00 per month.

10 She testified that her duties as Assistant Spa Manager with the Respondent which were detailed in her written job description included: (i) adhering to the objective of increasing sales and driving revenue; (ii) assisting with the management of the Spa, and managing same in the absence of the Spa Manager; and (iii) checking in guests.

11 She said that in her capacity she managed about 35 therapists and 15 line staff employees including Spa Attendants.

12 She said that as a result of a written report made by Jackie Smith against her she was called into a meeting with the Human Resources Director, Mrs. Carolyn Major, on August 26, 2008.

13 At the meeting, Jackie Smith orally repeated the allegations contained in her written report to Mrs. Major, and she (the Applicant) in turn gave her oral rendition of the facts:

14 She admitted that with respect to the first incident occurring on August 9, 2008, she did receive a pedicure shortly after 9:00am on that day from therapist Daslyn because it was her birthday. In hindsight she said that she should not have gotten the pedicure without management's permission.

15 She told Mrs. Major (as indeed was her testimony) that she was aware that Daslyn was due to go to the island spa that morning so she pre-arranged through receptionist Robertha for therapist Felicia Delancey to go in her stead.

16 Unfortunately, Felicia missed the boat to the island and Jackie called complaining that there was a couple on island who were due to receive a massage, and that they required two therapists and only one was available.

17 She said that she told Jackie that she would immediately try to arrange for another therapist to go to the island in time for 11:30am.

18 Jackie informed her that the guests were flexible and it was agreed that the couple would be given an 80 minute massage instead of a 50 minute massage, and that they would be offered a discount.

19 She said that the Water Sports Department subsequently confirmed that a boat would be leaving for the island at 11:00am. She confirmed to Jackie that a therapist would be on that boat, and it was decided and agreed between them that the guests would receive massage services “Spa Comp” i.e. free of charge.

20 Jackie further indicated that she apologized to the guests for the delay.

21 On inquiry by the Tribunal as to how she would describe her relationship with Jackie, the Applicant said that she had a “guarded relationship” with her because of a prior incident in which she was accused along with her Director, Mr. James Hilton, of stealing employee gratuities.

22 With respect to the second incident on August 19, 2008, the Applicant testified that she explained to Mrs. Major at the meeting on August 26, 2008, that Jackie came to her office complaining that she did not have a therapist to go to the island.

23 She said that she told Jackie that she had just left the reception area and that there were 2 therapists designated to go to the island.

24 Jackie continued complaining that she always finds that the therapists are booked up otherwise.

25 She said that she told Jackie that she was not aware that the receptionists were altering any instructions or re-directing therapists away from the island, and she suggested that she take the matter up directly with the receptionists.

26 Jackie continued complaining ad nauseam and so she suggested that she speak to the Spa Director, Mr. James Hilton.

27 She said that she told Jackie that in the interim she could not do anything about the situation and that she was busy preparing a written report for a meeting with the Resort Manager, Mr. Henson.

28 Despite indicating to Jackie that she had an urgent matter to prepare for Mr. Henson, she said that she continued to rant and complain, and further accused her of sabotaging her work for the island spa.

29 At that juncture she testified that she simply closed the door to get on with her work. She did not shut or slam the door in Jackie's face as alleged.

30 She said that in the circumstances she decided to write a report regarding the incidents on her computer.

31 In the presence of Jackie Smith and in response to Mrs. Major's inquiry as to why she did not bring the report to anyone's attention, she said that she replied that she only did the report so that she could have a personal record of the events “knowing the nature of the beast”. It did not occur to her to bring the report to anyone's attention because she regarded Jackie as making much ado about nothing.

32 The Applicant testified that on September 1, 2008, the date of her summary dismissal by the Respondent, she did not receive a letter of termination or any money. It was not until September 9, 2008, that she received a termination letter which contained the sum of $1,756.17 including her due commission for the month of August and two (2) weeks' vacation pay.

33 Finally, the Applicant testified that up to the time of the aforesaid incidents, she had never received any written reprimands for misconduct from the Respondent.

34 Jackquline (“Jackie”) Smith testified that she is now Jackquline Smith-McPhee.

35 She said that she is employed as the Supervisor of the Redlands Spa of the Respondent. Her duties include supervising therapists and ensuring that there is “smooth sailing” for the guests, and that she is responsible for the general supervision of the island spa.

36 With respect to the first incident on August 9, 2008, contained in her written report to Human Resources Director, Mrs. Carolyn Major, she said that she told Mrs. Major that had it not been for the Applicant's pedicure administered by Daslyn, she would not have had to make the frantic effort to find an alternate therapist to service the guests on island.

37 With respect to the second incident on August 19, 2008 (per her written report to Mrs. Major) she said that she complained to the Applicant that one of her therapists was “unblocked”.

38 She said that she asked the receptionist if she knew who unblocked the therapist. Her first reply was that she did not wish to say; then she said that she did not know.

39 She then went to the Applicant's office to inquire about the unblocking of one of the island's therapists.

40 The Applicant told her that she did not have the time to deal with the matter right then, and that she would have to deal with it herself.

41 She said that the Applicant further indicated that she was preparing a report for Mr. Henson and then she shut the door in her face.

42 Mrs. Smith-McPhee testified that she then wrote a report about the matters involving the Applicant and delivered it to the Human Resources Department.

43 As she recalled, it was on August 26, 2008, Human Resources Director, Mrs. Carolyn Major, met with...