Darin Dwight Strachan v Island Hotel Company Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 23 January 2014
• Docket Number: No.1503 of 2010

In the matter of the Industrial Relations Act, Chapter 321

And

In the matter of the Employment Act, Chapter 321A

Darin Dwight Strachan

Applicant

and

Island Hotel Company Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.1503 of 2010

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Mrs. Rionda Y. Godet and with her Ms. Sally Ann Lockhart,

Counsel for the Respondent — Ferron J. M. Bethell Esq. and with him Ms. Camille Cleare.

DECISION AND REASONS

The Facts:

1 The Applicant was at all material times employed with the Respondent in the capacity of Senior Director of Materials, Control & Logistics Supply Chain Management.

2 He commenced employment with the Respondent on November 28, 1994, and was summarily dismissed on April 16, 2010.

3 The Applicant alleges that he was wrongfully dismissed by the Respondent which falsely alleged that he was dishonest and failed to disclose his association with Baha Mar and its third-party vendor, Five Star Laundry.

4 The Applicant claims damages for wrongful dismissal and an apology from the Respondent.

5 The Respondent avers that the the Applicant's dismissal was lawful and justified as a consequence of his gross misconduct. In particular the Respondent alleges that:

“…As an employee of the Respondent the [Applicant] was required to read and acknowledge his understanding of the Respondent's Business Code of Conduct and Ethics (“the Code”). The Code, inter alia, proscribed an employee from engaging in other business activities or taking for themselves (sic) personally opportunities discovered through the use of corporate property, information or their (sic) position or using corporate property, information for their (sic) position for personal gain or competing directly or indirectly with the company. The Respondent had information that the [Applicant] was engaging in certain business activities with Baha Mar and confronted the [Applicant] on April 14, 2010. The [Applicant] denied that he was involved with or had any affiliation with Baha Mar or Five Star Laundry. Accordingly the [Applicant] was confronted with [e-mails as evidence of his alleged affiliation] and ultimately terminated for gross misconduct as the Respondent could no longer repose any trust and confidence in the [Applicant].”

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

The Evidence:

7 The Applicant testified that on March 15, 2010, while he was in the lobby of the Sheraton Hotel, he was introduced by a friend (Ms. Amanda Seymour) to Mr. Tommy Jones, Vice President of Facilities at Baha Mar.

8 Mr. Jones was inter alia in charge of developing laundry facilities for the new Baha Mar mega-resort.

9 The Applicant indicated that he expressed interest in the proposed laundry facilities and was invited by Mr. Jones to submit an informal proposal by e-mail outlining his interest.

10 The Applicant testified that sometime between March 15 and March 24, 2010, he advised his direct report, Mr. Gene Albury, Senior Vice President, of his proposed possible joint venture with Baha Mar. He said that he told Mr. Albury about the potential central laundry facility that they planned, and indicated that Baha Mar would need investors relative thereto.

11 He said that Mr. Albury advised him that he could not invest in the proposed joint venture because it would be a conflict of interest; and he further advised that if anything materialized between him and Baha Mar, he would have to resign.

12 He said that he told Mr. Albury that he was aware that he would have to resign in such circumstances.

13 The Applicant then produced a copy of an e-mail dated March 23, 2010 that he had sent to Mr. John McCloskey and Mr. Jim Weitkamp concerning the proposed project. He said that this e-mail was the premise upon which his dismissal by the Respondent was based. The e-mail read as follows:

“John,: Jim, I've just had a very successful meeting with the Baha Mar group on the laundry. Very good meeting!!! They are not interested in operating a facility themselves at all. They however, presented three options to me:

• 1. To have Baha Mar build their facility and we manage it.

• 2. We build a facility on their property.

• 3. We build a facility on our own facility.

I told them that we would prefer to build a facility and to be full owners.

They have indicated that they have been contacted by Five Star Laundry who may be interested and have started to use the services of Turnkey laundry consultants (whom I've worked with before).

The facility would have to produce 120,000 lbs daily.

Question: When are you available for visiting Nassau to do an initial meeting?

Your Thoughts

Darin Strachan”

14 The Applicant said that he asked Mr. Shadi Afra, the Respondent's Director of Laundry Operations, if he could accommodate Mr. Jones on a visit to the Respondent's laundry. Mr. Afra said that he could not because the laundry was experiencing some challenges at the time.

15 He said that Mr. Jones followed up with him and he again referred the matter to Mr. Afra who then asked whether Mr. Jones had anything to do with Five Star Laundry.

16 He replied in the negative and told Mr. Afra that Mr. Jones was the Vice President of Facilities at Baha Mar.

17 He said that he further explained that Mr. Jones proposed to visit the Respondent's laundry alone.

18 Mr. Afra then said that Five Star Laundry used to work for Baha Mar before and had also visited Atlantis.

19 The Applicant said that he told Mr. Afra that he had not heard of Five Star before. Mr. Afra then indicated that he would get back to him {the Applicant) on the proposed visit by Jones.

20 Within three to five minutes of his conversation with Mr. Afra the Applicant said that Mr. Gene Albury called him and said that Mr. George Markantonis had been ranting and raving about him (the Applicant) having something to do with Five Star Laundry.

21 He said that shortly thereafter he was summoned to a meeting (on April 14, 2010) in the Board Room with Mr. Gene Albury, Ms. Jean Cohen (Chief Operating Officer for Atlantis), Ms. Karen Carey and Mr. Shadi Afra to discuss the allegation that he (the Applicant) was somehow involved with Five Star Laundry.

22 The Applicant testified that during his tenure the Respondent had accommodated all sorts of persons to visit its laundry; and in turn, representatives of the Respondent were given opportunities to visit other facilities as well.

23 He said that the Respondent did not have any concerns about giving away trade secrets regarding its laundry facilities. In fact the Respondent was so proud of its facility that it made a video of it which was broadcasted over ZNS.

24 The Applicant said that as far as he was concerned there are no secrets in the laundry business.

25 The Applicant testified that he never had anything to do with Five Star Laundry; and was hurt by the accusations which were not substantiated by any investigations.

26 He said that during the meeting Mr. Afra gave the impression that he (the Applicant) had something to do with Five Star. He told Mr. Afra that he was lying.

27 He said that nevertheless he was subsequently suspended from work and ultimately dismissed.

28 The Applicant testified that he never breached the Respondent's Code of Conduct; and as far as he was concerned none of his communications with third parties infringed the Code.

29 He said that he had always kept Mr. Albury abreast all of his dealings/negotiations.

30 In any event he said that he never considered that a mere attempt at an association with Baha Mar to be a conflict of interest with his duties and responsibilities to the Respondent.

31 Finally, under cross-examination the Applicant admitted that he tried to obtain a copy of the profit and loss statement concerning the laundry; but he said that he only did so because since Mr. Afra took over the laundry substantial losses were being incurred.

32 Mr. Gene Albury, Senior Vice President of Supply Chain Management of the Respondent testified that he was asked by the Respondent to attend a meeting in April of 2010 involving the Applicant.

33 As he recalled, the persons in attendance at the meeting were: Ms. Karen Carey, Senior Vice President of Human Resources, Ms. Jean Cohen, Chief Operating Officer and Mr. Shadi Afra, Vice President of Laundry and Valet Services.

34 The meeting concerned the Applicant's involvement with Five Star Laundry.

35 He said that the Applicant denied that he was involved with Five Star. Then followed an acrimonious exchange between Mr. Afra and the Applicant.

36 Mr. Afra became very angry.

37 Mr. Albury testified that the Applicant never told him that he was associated with or was in negotiations with Baha Mar or Five Star Laundry. The first time he (Albury) became aware of this allegation was at this meeting in the Board Room.

38 He said that he had approached the Applicant for financials for the laundry in light of a number of meetings that they had concerning linen costs. He told the Applicant that they could lend assistance to the laundry once they were able to ascertain the cost of the linen.

39 As far as he was aware the financial information would be kept in the housekeeping department of each tower of the Respondent.

40 Mr. Albury said that after the initial meeting with the Applicant certain e-mails were revealed intimating that the Applicant was indeed involved in negotiations with Baha Mar and/or Five Star Laundry. The e-mails were produced at a subsequent meeting.

41 To the best of his recollection, the Applicant simply denied the contents of the e-mails.

42 Mr. Albury pointed out that the Applicant had not been working for him for a very long period — not longer than two years. He said however that virtually ab initio, the Applicant...