Cherisse Lewis v Maximum Security & Patrol Services Ltd

• Jurisdiction: Bahamas
• Judge: Keith H. Thompson
• Judgment Date: 05 July 2012
• Docket Number: IT/NES/127 5/0 9
• Court: Industrial Court (Bahamas)

Between:

Cherisse Lewis

Applicant

and

Maximum Security & Patrol Services Limited

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/127 5/0 9

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Ms. Damara Dillett Counsel for the Applicant;

Ms. Melissa Selva Rolle/ Michael Saunders Counsels for the Respondent

DECISION

1 This matter came on for hearing on June 01 ^st, 2011. The appearances at the time were Damara Dillett of the firm Hanna, Johnson & Co. for the Applicant. In this first instance, Melissa Selva Rolle appeared on behalf of Michael Saunders and advised the • court that while he was not a part of Lewis & Longley Law Firm he was assisting them with certain matters. However, he did not attend.

2 The matter was adjourned to the 6 ^th and 7 ^th February, 2012. The matter proceeded on this occasion, despite the fact that the Respondent nor its attorney appeared. The Tribunal proceeded pursuant to section 59 (1), (a) of the Industrial Relations Act. Chapter 341 of the Statute Laws of the Commonwealth of the Bahamas.

3 The Applicant was sworn in and gave her evidence in chief. Counsel for the Applicant began by setting out the Applicant's claim. She advised in her opening that the Applicant had a claim for Wrongful Dismissal and they had decided to proceed by way of the Act instead of the Common Law. Counsel set out the Applicant's claim as being;

• a) One (1) month's pay in lieu

• b) One (1) month pay pro-rated for seven (7) months;

• c) One month's pay being salary earned;

• d) Security deposit;

• e) gas allowance.

EVIDENCE OF CHERISSE LEWIS

4 The Applicant's evidence is that she was employed by the Respondent on April 01 ^st, 2 0 08 as the General Manager by way of a written contract of employment. The Applicant says that she would recognize her written contract of employment because she would have signed it. She was shown a copy of the contract of employment and identified it by her signature. The contract of employment was entered into evidence as Exhibit “C.L.1” and is set out in full below.

5 The Applicant was then asked to explain her duties. She explained that she was responsible for the overall management and the co-ordination of the company's operational affairs. However, she says that at the time, she entered into the contract it was never discussed that she would be required to work in the field nor was it discussed that she would sit in as a security officer for any employee. She also testified that marketing was not a part of her duties nor was sales generating.

6 The Applicant says that during the first six (6) to eight (8) weeks of her employment her duties were forever changing. According to her, in her first six (6) to eight (8) weeks there were about two (2) or three (3) resignations. Among those resigning were the Applicant's predecessor the previous general manager, the sales and marketing person and the person responsible for field operations. The Applicant's further evidence was that she was also asked to assist with training which was required to be done for a nine (9) to ten (10) hour period every Saturday. She was also asked to conduct other meetings on behalf of the persons who had resigned. In fact the Applicant says she did everything and went above and beyond.

7 The Applicant explained that when she first started and would go into work in the mornings, she would conduct meetings and then sit with departmental managers to go over their work day. She would also liaise with Mr. Rodgers who would outline his day to day instructions. This she says was consistent throughout. However, things started to be added to her already heavy duty list. According to the Applicant the positions of those who had resigned were never filled. However, she was instructed to try and find individuals to fill the positions but they were never filled. The duties of those persons who had resigned were passed on to the Applicant. However, there was no increase in salary for the Applicant.

8 The Applicant's further testimony is that there seems to be a high turnover of staff and as people left the Applicant was then required to work all day and sometimes her work day wouldn't end until 12:00 midnight. When asked what kind of work she would be doing, she said she would be holding on in the command center as an officer. She would be taking calls, dispatching and logging. She was also driving the patrol car doing patrols. According to her, there were even incidents where she actually held posts on cite. This became routine as time went on. She was never told that these new responsibilities were her additional duties. The Applicant says that her shortest working day was about twelve (12) to thirteen (13) hours and the longest would be about twenty-three (23) hours. The Respondent never hired any additional security to assist the Applicant.

9 Counsel for the Applicant asked her if during her employment she was ever commended or disciplined. Her response was that there was never any acts of praise as it appeared that she never did enough. She did however, convey her sentiments on several occasions both verbally and in writing to Mr. Rodgers the owner. She says he said that he was paying the Applicant's bills and that he was her god and he expected her to be available twenty-four (24) seven (7). This however, was not said to her at the beginning of her employment and it wasn't a term of her contract. The Applicant says that she was not involved in the finances of the Respondent. One Judymae would have been. However, she said she noticed that every month or every few weeks one of the Respondent's clients would give notice that they would not be needing the Respondent's services anymore. She says she spoke with one Bradley Watson from Coca Cola and he said that if the Applicant was still employed with Maximum the following year he would consider his reason.

10 The reason he said was that he had seen such a high turnover in management and that there must have been some internal issues with the Respondent and he was no longer comfortable with using their services. The Applicant says that it was a part of her portfolio to carry out investigations on internal procedures, somewhat 1ike an interview. She did this and her analysis was that there was nothing stream line. The morale of the employees was low. It seemed as if there was a lot of frustration and exhaustion. The Applicant says she felt as if they needed to bring in the employees, reassess them and relocate them in positions the company felt they would be comfortable in. However, they were short staffed in many areas and she recommended bringing in new help. She says her analysis was conveyed to both Mr. and Mrs. Rodgers. However, they did not really agree with her.

11 According to the Applicant Mr. And Mrs. Rodgers didn't feel as though the employees were frustrated but were actually lazy. Mr. Rodgers felt as if the morale was not a concern because at the end of the day they have to do their work to get paid. As far as additional staff was concerned, Mr. Rodgers said he was losing contracts and that he may consider it once an additional review was realized. This she says was another additional responsibility, i.e. to solicit new contracts. After these discussions there was no discussion about pay cuts or increases.

12 The Applicant's evidence is that, she was terminated on November 02 ^nd, 2008. She went on to explain what she saw as the reason. What she says is that Mr. Rodgers felt as if she was not doing her job to the best of her. ability but she had addressed a lot of concerns with him including asking him to restructure her contract because of the changes to her initial agreement.

13 The Applicant told him that she could not operate under the additional demands. Mr. Rodgers presented her with an additional contract and told her that she would need to sign it and if she didn't sign it, he would need to make some additional considerations. The Applicant told him that she would need to look it over as she was not willing to sign it before she read it. She received a copy and was told by Mr. Rodgers that he was going to be off the island for a couple of days and when he returned they could discuss it. Prior to meeting with Mr. Rodgers and checking her e-mails she noticed an e-mail terminating her services. She saw it on the Sunday which was probably on November 01 ^st. 2008 but it was dated October 31 ^st, 2008. Counsel for the Applicant referred the Applicant to a copy of the e-mail and she identified it as being a copy of the e-mail of termination. The e-mail was entered into evidence as exhibit “C.L. 2”.

14 After seeing the e-mail, the Applicant. contacted the office and spoke with the Administrative Manager Suzeanne about the e-mail and asked if she would be able to speak to Mr. Rodgers. Suzeanne told her that Mr. Rodgers wanted the Applicant to hand in the contract for fidelity and that she needed to bring Suzeanne up to date on all outstanding issues. The last time the Applicant received any remuneration from the Respondent was in September 2008 despite the fact that the Applicant worked the month of October, 2008. The Applicant says she is asking the court to award her the salary earned, her security deposit, gas allowance, pay in lieu of notice, notice pay and vacation pay. She is also seeking damages for breach of contract.

15 According to the Applicant, her contract was a fixed term contract for a period of three (3) years. After her termination from Maximum Security the Applicant says she didn't immediately find employment. However, she did actively seek employment but was not successful in finding any' employment right away. She did however have some interviews but wasn't employed by one of the companies because she says they recalled her photo being in the news paper and said they were not interested in hiring her. She eventually got a job the following year on or...