Brandyt Albury v City Market

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 23 September 2011
• Docket Number: IT/NES/1264/08

Between:

Brandyt Albury

Applicant

and

City Market

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1264/08

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Obie Ferguson Counsel for the Applicant

Mr. Kenneth Lightbourne Counsel for the Respondent

DECISION

1 The Applicant in this matter is claiming breach of section 21(a) of the Employment Act, payment due in accordance with section 17 of the Employment Act and owed overtime payment. The Applicant's further claim is for either compensation for the above or re-engagement.

2 The defence of the Respondent is that the Applicant was made redundant and was paid all of her benefits. As it relates to the overtime, it is the Respondent's defence that the Applicant was not authorized by the Respondent to work overtime and as a result is therefore not entitled to receive any compensation for overtime. Additionally, the Respondent's defence is that the Applicant was not made redundant or dismissed because she was pregnant. In fact, the Respondent's defence in this regard is that the Respondent was not aware that the Applicant was pregnant before and up to the time of being made redundant. The Respondent's defence is that the Applicant never advised it that she was pregnant verbally or in writing.

EVIDENCE OF THE APPLICANT

3 The Applicant's evidence is that she commenced employment with the Respondent in July 2005 and was terminated in July 2008. At the time of termination she was a manager until around October 2007 when she was made scan co-ordinator which was a lateral move.

4 It is her evidence that she worked overtime when she was a manager and after she became scanning co-ordinator. The Applicant says that even as a store manager she received payment for overtime and as scanning co-ordinator she received time off in lieu. In or about 2007, the company stopped paying overtime and gave time off instead. It is the Applicant's evidence that on or about May 2008 she worked overtime because a Mr. Paul Leighton had placed her on a special project to finalize their inventory. This project required the Applicant to take all of the inventory's physical data and compile it into the system and ultimately produce reports for the fiscal year end.

5 The fiscal year end was in June. The Applicant says that when Mr. Leighton assigned her the project, he told her that it was vital that she got it done and anything that she needed to accomplish the task, she should go and get because they had to have it completed at the end of the period. This project involved twelve (12) stores. The Applicant says that she worked from Monday to Saturday working only half day on Saturday and is not claiming time for the Saturday. Her claim for overtime is only for Mondays to Fridays for the period claimed. It is the Applicant's evidence that her overtime began in May and ran to the end of June. The overtime would have started at 5:30 p.m. and ran until between 8:30 – 9:00 p.m. The Applicant says she only stayed until 7:30 p.m. on Fridays because she knew she would be going in on Saturdays.

6 It is the Applicant's evidence that she left the Respondent in July 2008. She explained that Mr. Peter Goudie told her that she was no longer needed. Mr. Goudie she says is the one, who interviewed her, hired her and then fired her. According to her, no reason was given and she felt that no reason was given because it was for a personal reason. The Applicant says it could not have had anything to do with her performance. It is the Applicant's testimony that when Mr. Goudie told her that she was being let go they both said; “we all know the real reason.”

7 Upon accepting the scanning co-ordinator's position, the Applicant says she was informed by Mr. Goudie and Mr. Ken Burns, the former CEO that it was not a temporary position and there would have always been an opportunity to go back into the stores and that was the hesitation she had in accepting the position. This is the reason she says, that when Ken Burns left in February or April that she e-mailed the new CEO and he told her that he was going to put her in a new position, either in IT or somewhere else. This she says confirmed for her that she was a valuable employee with the company.

8 The Applicant's further evidence is that Mr. Goudie phoned her on the morning of July 31 ^st, 2008 to tell her that he wanted to meet with her when she came to work. She went in and saw him later that morning. They greeted each other and Mr. Goudie then said he had something to tell her. She went on to testify that as she felt the relationship between her and Mr. Goudie was favourable, she told him that she also had something to tell him. This was Mr. Goudie's first day back to work after being on vacation for about two and a half weeks.

9 The Applicant says she was anticipating Mr. Goudie telling her about a promotion, as the IT Manager had told her that he was asked about her joining the IT Department to be in charge of the system since she had just completed the project. The Applicant went on to testify that at this point she thought she should let Mr. Goudie know what her situation was. It was then that she says she told Mr. Goudie that was pregnant. She says his eyes got red and he started to cry and said what he had to say was even harder and that's when she realized her time had ended.

10 The Applicant says that after Mr. Goudie told her that Steven Boyle, the CEO said that she was no longer needed, she didn't ask because she knew that he didn't like her because she had worked with Ken Burns, the former CEO and got along well with him, but Steven Boyle had a different objective. He came in from Barbados. He is actually a Scotsman. The Applicant says she did not receive a letter of termination; they just put her money in her account.

11 It is the Applicant's further testimony that Mr. Goudie asked her if the company owed her any expenses. According to the Applicant, the company owed her for meals and gas. The Applicant says she e-mailed Mr. Goudie everything regarding her Freeport trip, her mileage and the maternity claim. When they met at conciliation, Mr. Goudie's position was that Mr. Boyle said no to the maternity claim. The Applicant was asked to pick up a cheque in August which was some three to four weeks after her termination. The cheque was for her per diem and mileage.

12 After the meeting with Mr. Goudie, the Applicant went in the back to give in her computer to the IT Manager and to say goodbye to everyone. The Applicant was asked by her counsel whether she visited a doctor and she testified that she visited the doctor on the same afternoon she had the meeting with Mr. Goudie. When asked if the doctor had given her a letter, the Applicant said that the letter had to be prepared. The letter confirmed that she was positive for being pregnant.

13 The Applicant disclosed her doctor as Doctor Homer Bloomfield. When asked how she knew she was pregnant prior to speaking or meeting with Mr. Goudie during the morning of the same day she had a scheduled appointment with Dr. Bloomfield, the Applicant says that she carried out her own home pregnancy test which showed a positive result indicating that she was pregnant.

14 It is the Applicant's testimony that she was terminated on July 31 ^st, 2008 and never received any compensation for her overtime despite the fact that Mr. Goudie had asked her to provide him with her claim. She says she had requested her lieu days from Mr. Paul Leighton. Counsel for the Applicant produced a letter from Dr. Bloomfield which was entered into evidence as exhibit “B.A. 1”. The Applicant recalled her expected date of delivery as being February 28 ^th.

15 It is the further testimony of the Applicant that City Markets never gave her an opportunity to take up another position in the company. However, she says that the supervisor of stores called her and told her that they needed people in the stores and wanted to know why they let her go like that. She identified the Supervisor as Mr. Floyd Moree.

16 The Applicant's evidence is that she was earning about $775.00 per week. She enjoyed the benefit of the medical plan for which she paid $10.00 and the company paid the balance. According to the Applicant, she was also owed three weeks vacation, about five or ten sick days and 25% of her salary as a bonus if the company made the projected profit. She did not contribute to any pension plan.

17 The Applicant says she was never told that her job had become redundant just that she wasn't needed anymore. According to the Applicant, as far as she was aware, it was always the policy that if your job became redundant they would put you elsewhere in the company.

18 Under cross-examination, counsel for the Respondent firstly pointed out some discrepancies in the Originating Application. He pointed out that paragraph 7, which set out the date for commencement of employment and termination was correct. However, paragraph 8 had a different amount for salary ($750.00 per week); paragraph 9 — maternity benefits; overtime pay and medical insurance.

19 [Paragraph 11 — Breach of section 21 (a)/section 17. These matters are for consideration by the Tribunal.] Counsel for the Respondent asked the Applicant how much was she earning at termination and she said $774.50 or there about. She says that the position of scanning co-ordinator was one of management. However, when it was put to her that in a management position you would not be entitled to overtime, the Applicant responded by saying she would assume that what was in operation would have continued. When pressed as to whether she was entitled to overtime pay, the Applicant said she did not know. The Applicant says that she expected to be paid overtime at the rate of either time and a half or double time depending on which days she worked. She says she was not authorized to work overtime in writing. It is her...