Central Bank of the Bahamas v Lorenzo Deveaux

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, P
Judgment Date26 September 2022
Neutral CitationBS 2022 CA 127
Docket NumberSCCivApp No. 143 of 2021
Between
Central Bank of the Bahamas
Appellant
and
Lorenzo Deveaux
Respondent
Before:

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp No. 143 of 2021

IN THE COURT OF APPEAL

Civil Appeal-Employment Law-Unfair Dismissal-Wrongful Dismissal-Sections 31, 32, 34, & 35 of the Employment Act-Termination of Employment Without Notice-Gross Misconduct-Employer's Honest Belief on Reasonable Grounds that the Employee Committed Gross Misconduct-Adherence to Rules of Natural Justice During an Investigation-Industrial Agreement

The Respondent was employed with the Appellant from 14 May 2007 until 5 April 2013, when he was summarily terminated for committing a major breach of discipline contrary to the Industrial Agreement Between The Central Bank and The Union of Central Bankers and the Appellant's policies. The major breach was that the Respondent altered an insurance certificate on a vehicle for which the Appellant had provided a loan. Further, after conducting an investigation, the Appellant found that the insurance certificate inexplicably also had a different VIN number from the VIN number on the bill of sale.

The Respondent submitted that he innocently altered the insurance certificate to reflect his real name; the Appellant submits that the Respondent's actions in altering the document were fraudulent and dishonest.

On these facts, the judge determined that the Respondent's termination was wrongful as she was satisfied that while the Respondent's actions might give way to suspicions of dishonesty, they did not admit of gross conduct and therefore warrant summary dismissal. The judge awarded the Respondent $18,529.40 in damages for unfair dismissal.

The Appellant now appeals the judge's decision. The Respondent filed a Respondent's Notice, which seeks to uphold the judge's finding that the dismissal was unfair, requesting this Court to increase the damages to $97,012.96 and to reinstate his employment with the Respondent.

The main issue for this Court's determination is whether there was sufficient evidence to enable the Appellant to form an honest and reasonable belief that the Respondent's actions amounted to gross misconduct. Further, this Court had to determine whether natural justice principles were accorded due respect and the grievance procedure was followed.

Held: The appeal is allowed. The finding of unfair dismissal by the judge is quashed and the award is set aside. The Respondent's Notice is dismissed. Costs certified fit for two counsel are awarded to the Appellant, to be taxed if not agreed.

The Respondent's admission to altering the insurance certificate, combined with the VIN number disparity, was sufficient evidence to allow the Appellant to form an honest and reasonable belief that the Respondent was guilty of gross misconduct. The Respondent's action was especially egregious because he was a security at not just any financial institution, but at The Bahamas' Central Bank. The Appellant had a reasonable expectation that its employees will operate with the utmost probity when dealing with the Appellant, and with the general public.

Further, the Respondent was made aware of the allegations being levied against him, was given an opportunity to be heard, and was advised of his right to have union representation. In any event, the Respondent was entitled to engage the grievance procedure set out in the Industrial Agreement if he was dissatisfied with his dismissal; importantly, the Respondent, and not the Appellant, was the only party who could initiate the grievance procedure. In the circumstances, the judge's finding that the Respondent's dismissal was unfair cannot be sustained.

Anya M. Dorsett v Pictet Bank & Trust Limited SCCivApp. & CAIS No. 113 of 2011 considered

Cherelle Cartwright v U.S. Airways SCCivApp No. 130 of 2015 considered

Eden Butler Appellant and Island Hotel Company Limited SCCivApp & CAIS No. 210 of 2017 applied

Itau Bank & Trust Bahamas Limited and Avis Munroe IndTribApp. No. 33 of 2021 considered

Steven Kent Jervis, KST Investment Limited v Victor John Skinner [2011] UKPC 2 applied

APPEARANCES:

Mr. Ferron Bethell, KC, with Ms. Lakeisha Hanna, Counsel for the Appellant

Mrs. Rionda Deleveaux-Godet, Counsel for the Respondent

Sir Michael Barnett, P

Judgment delivered by the Honourable

1

. This is an appeal by the Central Bank of The Bahamas (“the Bank”) against a Judgment of the Supreme Court by Bowe Darville J whereby she awarded the Respondent, Lorenzo Deveaux (“Deveaux”) $18,529.40 as damages for unfair dismissal.

2

. Deveaux has filed a Respondent's Notice seeking to vary the judgment by increasing the damages to $97,012.96 and reinstate his employment with the Bank.

3

. Deveaux brought this action against the Bank on the 23 August 2016. The statement of claim is in the following terms:

  • 1. The Defendant is a body corporate constituted by virtue of the Central Bank of The Bahamas Act 2000.

  • 2. At all material times, the Plaintiff was a member of the bargaining unit of the Defendant by virtue of the provisions of an industrial agreement “the Industrial Agreement” between the Defendant and the Union of Central Bankers.

  • 3. The terms and conditions of the Plaintiff's employment were governed by the Industrial Agreement.

  • 4. The Plaintiff commenced employment with the Defendant sometime on or about May 2007 in the post of Security Officer.

  • 5. By letter dated April 5 th 2013, the Defendant terminated the Plaintiff's contract of employment purportedly in accordance with article 21.4 of the Industrial Agreement for major breach of discipline. However, the Defendant failed to disclose to the Plaintiff the exact nature of the breach of discipline.

  • 6. The Defendant's failure to disclose to the Plaintiff the specific nature of the alleged major breach of discipline and allow the Plaintiff an opportunity to respond rendered the dismissal unfair. Further, the Defendant terminated the Plaintiff unfairly against his right [not] to be terminated and failed to give him fair compensation to which he is entitled by virtue of sections 34, 35, 44, 46, 47 and 48 of the Employment Act 2001.

  • 7. At termination the Plaintiff's job title was Security Officer I.

  • 8. At the time of termination the Plaintiff's annual salary was $23,490.00, plus a yearly increment based on performance and article 7 of the Collective Agreement, which deals specifically with increases and lump sums.

  • 9. The Plaintiff's contract of employment entitles him to a 3.25% mortgage rate. However, the Central Bank of The Bahamas, the employer, unilaterally changed the rate without consultation and agreement with the Plaintiff. This is a breach of the employment contract of the Plaintiff.

  • 10. The Plaintiff is seeking reinstatement pursuant to Section 43 of the Employment Act on the basis that he was unfairly terminated pursuant to sections 34 and 35 of the Employment Act, and Articles 21.17 and 22 of the Industrial Agreement.

  • 11. The Defendant breached Article 21.16 of the Industrial Agreement by failing to commence at the appropriate stage of the grievance procedure.

  • 12. The Defendant breached Article 21.17 of the Industrial Agreement by denying the Plaintiff the opportunity to be reinstated by denying him a proper hearing pursuant to the grievance procedure.

  • 13. The Defendant breached Article 22 by failing to evoke the grievance procedure and as such breached the rules of Natural Justice.

  • 14. A declaration that the Defendant breached Articles 2.3, 2.6, 2.23, 2.24, 18.2, 18.3, 21.1, 21.6, and 21.14 of the Industrial Agreement which forms the basis of the Plaintiff's terms and conditions of employment.

  • 15. By reason of the Defendant's unfair dismissal of the Plaintiff the Plaintiff has suffered loss and damage.

  • 16. PARTICULARS OF SPECIAL DAMAGE AND CONTINUING

    Cal of loss of Compensation

    2013

    2014

    2015

    2016

    Jan-April

    8,001.64

    8,458.98

    8,678.64

    April 5th – April 30th

    May — Oct

    1,693.61

    Nov — Dec

    11,724.96

    12,002.46

    12,740.46

    6,508.98

    4,000.82

    4,093.32

    4,339.32

    17,419.39

    24,097.42

    25,538.76

    15,187.62

    $

    Ann Cash incentive/i ncrements (3)

    1,110.00

    1,110.00

    $1,110.00

    Industrial Agreement lump sum (Jan)

    2,500.00

    2,250.00

    Total

    annual lost cash benefits

    $18,529.39

    27,707.42

    $26,648.76

    $17,437.62

    $90,323.18

    Vacation days entitled to:

    May 1 — April 30

    1.67

    20

    20

    20

    61.67

    Per Diem Rate (2169.66/20)

    108.48

    Total vacation pay up to April 30, 2016

    $6,689.78

    Total Claims:

    Salary for April 5th, 2013 — July 31, 2016

    82,243.18

    Annual review cash for 2013 – 2015

    3,330.00

    Ind. agreement lump sums — 2014 & 2016

    4,750.00

    Vacation pay up to April 30, 2016

    6,689.78

    $97,012.96

    Pension rights/yrs of continuous service

    Mortgage Loan rate of 3.25% based on mortgage agreement and Industrial Agreement as at 5 April 2013

    All other benefits afforded to active/current staff/security officers in accordance with the Industrial Agreement

  • 17. The Plaintiff further claims interest at 10% on the said sum pursuant to section three (3) of the Civil Procedure (Award) of Interest Act, 1992 on such sums as are found to be due and owing until final payment or alternatively to be reinstated with all accrued benefits. And the Plaintiff claims:

    • 1. Reinstatement pursuant to article 21.17 of the Industrial Agreement and section 43 of the Employment Act;

    • 2. Damages;

    • 3. Interest pursuant to the Civil Procedure (Award) of Interest Act, 1992;

    • 4. Costs;

    • 5. Such further or other relief as...

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