Berchnal Elkeanah Moss v Western Air Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 14 March 2013
• Docket Number: No.1386 of 2009

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Berchnal Elkeanah Moss

Applicant

and

Western Air Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President

No.1386 of 2009

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Serfent Rolle Esq.

Representative of the Respondent — Mr. Mannix Cargill.

DECISION AND REASONS

The Facts and Evidence:

1 The Applicant commenced employment as a ticket agent with the Respondent in January of 2008.

2 His salary was $250.00 per week.

3 The Applicant alleges that he was wrongfully dismissed by the Respondent on or about August 4, 2009, and claims damages for wrongful dismissal.

4 The Respondent alleges that it did not terminate the employment of the Applicant, and avers that the Applicant abandoned his employment.

5 In the circumstances the Respondent alleges that the Applicant is not entitled to damages for wrongful dismissal or any damages at all.

6 The Applicant testified that on August 4, 2009 he reported to work for his 11:00am shift. He said that he worked until about 3:00pm, and while he was checking the Mangrove Cay and Congo Town flights, he was summoned to the office by the Respondent's Vice President, Ms. Shandrice Rolle, who told him that he was suspected of boarding passengers on flights and taking the fares and “splitting” same with pilot, Dwight Major.

7 The Applicant said that he replied that he did no such thing, and he reminded her that the Respondent had no adverse records of misconduct against him since he commenced employment in January of 2008. He further suggested that Mrs. Rolle investigate other staff.

8 Despite his insistence that he was not guilty of any wrongdoing, he said Mrs. Rolle took his ID and suspended him until further notice. She further advised him that they were going to conduct an investigation and if their findings revealed that he was guilty, he would be prosecuted.

9 The Applicant said that she then spoke with Dwight Major; and after that conversation she again approached him inquiring whether he was ready to talk and “come clean” and inform her who was doing the stealing. He said that he again replied that he did not know and that she should continue to pursue her investigations.

10 Mrs. Rolle then said, “When you are ready to talk call me.”

11 On that note, he left the premises.

12 He subsequently contacted Leucretia Rolle, the Station Manager, and inquired as to any leads or progress regarding the Respondent's investigations of stealing. Lucretia told him that the investigations were still in progress and that he could not yet return to work.

13 He said that the Respondent never called him, and that he received no correspondence whether by e-mail or otherwise from the Respondent.

14 In the meantime he went for an interview at Atlantis, and he was subsequently told by Atlantis (by phone) that the Respondent advised that he was fired for stealing. This happened about two weeks after he was suspended.

15 He said that the Respondent never told him why he was suspected of stealing.

16 He testified that when he commenced employment with the Respondent, employees worked on a set shift schedule. The Respondent later introduced a rotation schedule.

17 He could not remember the persons who were on his shift on August 4, 2009. He noted however that other agents were terminated and reinstated — notably, Harvey Woodside. He said that Mr. Woodside was terminated for stealing, but no doubt he was reinstated because he was the brother of Vice President, Shandrice Rolle.

18 The Applicant testified that he never received a letter of employment from the Respondent, and never executed a contract of employment with or received an employee handbook from the Respondent.

19 He said that while he was on indefinite suspension by the Respondent he decided to seek alternative employment, and eventually got a job with his cousin, at Navaho's Bar in December of 2009. His salary there was $150.00 per week.

20 He later got employment at Luciano's Restaurant in January of 2010 also at basic salary of $150.00 per week.

21 Finally, the Applicant testified that he was never told to report back to work, and hence claims compensation for wrongful dismissal.

22 Mr. Mannix Renaldo Cargill testified that he is the Accounts Manager of the Respondent, and is also in charge of its investigations and network administration.

23 He said that there was an ongoing investigation at the Respondent because a number of employees were reported to be engaged in an “illegal ring”. It was discovered that the passenger manifest did not show the correct amount of passengers on certain flights.

24 He said that this information came to the attention of the Respondent from employees and passengers indicating a theft scheme as follows:

• (i) A passenger would purchase a ticket from the counter and the agent involved in the scheme would bypass the system by not recording the transaction.

• (ii) The agent would then inform the pilot of the extra passenger.

• (iii) The pilot would in turn adjust his calculations for weight and balance on the aircraft to accommodate the extra passenger.

• (iv) On returning to Nassau, the agent and the pilot would “split” the funds, because there would have been no record of the transaction.

25 Mr. Cargill testified that an internal investigation was...