Chanell Roker v West Bay Management Ltd (d.b.a. “Sandals Royal Bahamian Resort & Spa”)

• Jurisdiction: Bahamas
• Judgment Date: 16 November 2006
• Docket Number: No. 837 of 2004
• Court: Industrial Court (Bahamas)

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Chanell Roker

Applicant

and

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

Respondent

No. 837 of 2004

INDUSTRIAL TRIBUNAL

NASSAU

Counsel for the Applicant — Obie Ferguson Jr. Esq., with him Mr. Errol McKinney.

Counsel for the Respondent — Ms. Camille Cleare.

DECISION AND REASONS

The Facts:

1 By letter of employment dated February 18, 2002, the Applicant commenced employment with the Respondent in the following terms:

“LETTER OF ENGAGEMENT AND

TERMS AND CONDITIONS OF EMPLOYMENT

2 NAME: Ms. Chanell Roker

3 DATE EMPLOYMENT COMMENCES: February 18 ^th 2002

4 Dear Ms. Roker:

5 We are pleased to offer you a position at Sandals Royal Bahamian Hotel as a cook in the Kitchen Department with effect from 18 ^th February 2002.

6 The terms of your employment are set out in this letter and in the Sandals Royal Bahamian Hotel Team Members' Handbook and these documents and your description will together constitute your contract of employment.

Salary

a. Your salary will be B$5.467 per hour plus 100% gratuity points (the amount paid for gratuities will depend on the hotel's occupancy) during the three month probationary period.

Work Week

b. The work week shall be five (5) days or 37,5 hrs. You will be entitled to two (2) days off each week. One of the two days shall be fixed on a regular basis.

Extra Hours

Whenever the needs of the business of Sandals Royal Bahamian Hotel so requires, you may be called upon to work extra time and will only be scheduled by your department head. Extra time will be paid at one and a half (1 ¹/₂) times your hourly rate.

Probationary Period

During the first three months, you will be on probation during which time this contract can be terminated without notice by either party.

Termination After Probation

After the expiration of the probation period, your employment may be terminated by either party by the giving of two weeks notice in writing, or in the case of the Company, by the payment of two weeks pay in lieu of notice. Sandals Royal Bahamian reserves the right to dispense with the giving of any notice or payment in lieu of notice in the event of any grave misconduct examples of which are set out in the Sandals Royal Hotel Team Members' Handbook at page 11. This list is not exhaustive and there may, therefore, be other acts or omissions constituting grave misconduct which could result in your dismissal without notice or payment in lieu thereof. In the event of termination of employment any benefits enjoyed such as duty meals, and any other benefit shall cease on the last day of actual work. You shall not be entitled to any compensation whatsoever in respect thereof.

Vacation

You are entitled to a paid Vacation of two (2) weeks after the first continuous year of employment which is to be taken at the convenience of the Hotel (you can request one week off after six months of employment). In the event of an earlier termination of your contract you will be entitled to receive Compensation for accrued vacation time on a prorated basis for actual time worked.

Your Duties

Your duties will be those as outlined in your job description, or as may be assigned to you in the future. Sandals Royal Bahamian Hotel reserves the right to require you to work in another location or position to carry out duties in each case different from those assigned or allocated to you at the date hereof or specified in your formal job description.

Hotel Rules

You are expected to abide by all Hotel rules and regulations as set out herein and in the Sandals Royal Bahamian Hotel Team Members' Handbook, including the attendance of all scheduled orientation sessions. You are to have particular regard to page 11 of the Handbook, which sets out the violations which will not be tolerated at this Resort.

Job Descriptions

Each employee will be provided with the job description during the week of orientation outlining the duties to be performed during the period of his/her employment.

Signature Clause

h. The above noted Conditions together with the Sandals Hotel Team Members' Handbook which will be given to you at the orientation and your job description shall together form your contract of employment with Sandals Royal Bahamian Hotel; should you not agree to be bound by the Handbook you may refuse to sign it and not be obliged to work for the company.

Channell Roker __________________________ Employee's Signature	Date 3/4/2002
__________________________	Date 19/2/02

Stephen Ziadie

General Manager”

7 The Applicant was summarily dismissed by the Respondent on July 9, 2004.

8 The Applicant claims that she was wrongfully dismissed by the Respondent, and claims damages for wrongful dismissal and for broach of her employment contract.

9 Further, the Applicant claims ancillary benefits, viz., compensation with respect to duty meal entitlements, Christmas bonus and tips.

10 The Respondent alleges that it did not dismiss the Applicant wrongfully and avers to the contrary that it did indeed summarily dismiss the Applicant because she had committed gross misconduct on the Respondent's premises, viz., an act of physical violence.

11 In the circumstances the Respondent avers that the Applicant is not entitled to any damages for wrongful dismissal, or any damages at all.

The Evidence:

12 The Applicant testified that at about 1:00 PM on July 10, 2004, she was having lunch with her co-workers in the Respondent's staff cafeteria. She said that she was eating a piece of cheesecake and drinking a Coca Cola.

13 She said that while doing so a guy who clears the tables in the cafeteria (Justin) passed by her and told her that she better move her stuff. She said that she responded that he could not be speaking to her because that was not her job.

14 She then got up and proceeded to walk out of the cafeteria.

15 She testified that while walking out of the cafeteria she had a plastic Gatorade bottle in her hand, and Justin brushed up to her and pinched her on her behind. She then swung back and hit him with the Gatorade bottle.

16 She said that it happened so fast that she did not know where the bottle “catch him”.

17 She said that after she walked out of the cafeteria she saw her supervisor (Dave) and a lady named Stacey (who worked in a different Department) and she told them what had happened. She said that she told Dave that Justin had pinched her on her behind and she “licked him” with a Gatorade bottle.

18 She said that Stacey told her that she would get into problems for doing that.

19 She said that she had no relationship with Justin, and she told Stacey that if he did it again she would “lick” him again.

20 She said that Dave then told her to go back downstairs to work, and she did so; but about fifteen minutes later a staff member told her that Mrs. Major, Director of Human Resources, wanted to see her in her office.

21 She said that she went to the office and attempted to explain what had happened, but Mrs. Major began “freaking out” and said that she did not want to hear it, because more than one person had called her office and reported the incident to her previously.

22 She testified that Mrs. Major then called over to the cafeteria and requested that Mrs. Saunders (the lady that runs the cafeteria) send Justin over to her office.

23 Justin confirmed that she indeed hit him with the Gatorade bottle, but she explained again to Mrs. Major that she hit him because he pinched her on her hip. Justin denied doing so.

24 She said (parenthetically) that she understood that Justin got fired about three weeks afterwards for sexually harassing another female who was no longer working with the Respondent.

25 The Applicant testified that after Mrs. Major heard what she and Justin had to say about the incident, she asked her to follow her to the Manager's office.

26 She said that while heading for the Manager's office she pleaded with Mrs. Major not to fire her, but Mrs. Major kept on saying that she did not want to hear it.

27 Mrs. Major entered the Manager's office for about twenty minutes, and afterwards emerged and requested that she bring her uniforms in the following day if she wanted to get paid.

28 Finally, the Applicant testified that she had never been sexually harassed at the Respondent prior to this incident.

29 She adduced a memorandum dated sometime in July 2004 which appeared to be addressed to the Director of Human Resources and signed by David Hashim, Executive Sous Chef. The Tribunal informed the Applicant that no substantial evidentiary weight could be attributed to the document because Mr. Hashim was not available to give evidence as to its contents, and further, counsel for the Respondent would not have the opportunity to test the contents thereof by way of cross-examination. Nevertheless the memorandum is set out as follows for the record:

“To; Mrs. Caroline Major

Incident Report: Channel Roker

Date: July 2004

In July an incident occurred in the staff cafeteria involving Channel Roker a culinary associate and a male associate working in the staff dining room. Channel Roker came to me at approximately 1:00 PM. She said that a male associate in the staff dining room pinched her and she responded by hitting him with a bottle across his head. She also said she would hit him again if he touched her again. I attempted to calm her down. Stacey Mackey a senior manager was a witness to the situation and explained to Channel Roker that rather than hitting the male associate from the cafeteria that she should report the situation to human resources. Ms. Sanders the manager of the staff dining room also witnessed the event and explained the same and also told her to speak with her Executive Chef Kevin Palm.

Executive Sous Chef

David Hashim”

30 Mrs. Bloneva Saunders...