Darron Smith-Rollins v Island Hotel Company Ltd

• Jurisdiction: Bahamas
• Judge: Harrison L. Lockhart
• Judgment Date: 29 November 2011
• Docket Number: No.12 67 of 2009
• Court: Industrial Court (Bahamas)

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Darron Smith-Rollins

Applicant

and

Island Hotel Company Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.12 67 of 2009

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Obie Ferguson Jr. Esq.

Counsel for the Respondent — Ms. Lakeisha Strachan.

DECISION AND REASONS

The Facts:

1 The Applicant was at all material times employed with the Respondent as a concierge under the terms of a written contract of employment dated January 20, 2006.

2 According to his testimony, his duties included:

• (i) Assisting guests with respect to all amenities provided at the Ocean Club.

• (ii) Making flight arrangements and securing hotel accommodation for the guests.

• (iii) Assisting guests in the arrangement of any other activities that they might be interested in while at the Resort.

3 Clause 16(c) of the said contract of employment provided inter alia as follows:

“The company may terminate your employment without notice or payment in lieu of notice in the event of serious misconduct in the course of your duties, including but not limited to… Persistent tardiness…”

4 The Applicant alleges that he was wrongfully dismissed by the Respondent and claims damages with respect to wrongful dismissal.

5 The Respondent alleges that it did not wrongfully dismiss the Applicant and avers that the Applicant was summarily dismissed on September 16, 2008 for just cause because:

“The Applicant was repeatedly late for work, and had an unacceptable level of absenteeism. The Applicant had been warned on numerous occasions without any apparent improvement. From January 1, 2008 to the date of his termination the Applicant swiped in late for his scheduled shift approximately 75 times.”

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 At the Hearing of this Dispute which commenced on November 28, 2011, the Applicant testified that the allegations against him by the Respondent on the whole were fabrications.

8 He testified that the new middle management team which had supervisory jurisdiction over him comprising Telsine Rolle, Front Office Manager, Paula Eneas, Assistant Front Office Manager, and Sophia Rankine, Assistant Front Office Manager, did not like him. They felt that his personality was too strong and alleged that he was influencing other staff negatively.

9 He testified that the reason for his lateness was more often than not because of the parking problems which he encountered at the Respondent. According to him, the prior management team understood these difficulties and did not apply the timely attendance rule fastidiously.

10 When asked by the Tribunal whether management including his supervisors had designated parking spaces, the Applicant said that management at their level did have parking spaces; but at the level of middle management (which included him) no specific parking spaces were provided.

11 Ms. Telsine Rolle testified that she is currently employed at Atlantis as the Director of VIP Services.

12 She said that between 2007 and 2008 she was employed with the Respondent as the Front Office Manager of the Ocean Club, and was at all material times the supervisor of the Applicant.

13 She testified that on the very first day that she took the job as Front Office Manager on a Wednesday in July of 2007, the Applicant turned up late for his shift. He was scheduled to work on the 3:00pm to 12:00am shift, and did not show up until 3:30pm.

14 She said that despite her coaching and words of encouragement to the Applicant that he try to do better, he persisted in his tardiness. Invariably the excuse that he gave for his lateness was the problem that he encountered in finding parking space. She said that she always admonished him to call the Manager or someone in authority and advise if he was having parking difficulties so as to avoid having to be recorded as swiping in late in the circumstances; but more often than not he did not heed her advice.

15 Mrs. Rolle also noted that it only takes 2 to 3 minutes from the farthest part of the parking lot for an employee to arrive at the security check point in order to swipe in their attendance on the job.

16 As time went on, every other week the Applicant would either be sick or late.

17 She said that contrary to the Applicant's allegation, she did not have a designated parking space; everybody had the same parking difficulties.

18 In addition to her oral warnings and coaching Mrs. Rolle produced a plethora of written warnings to the Applicant concerning his lateness. She also produced extrapolations from the Kronos time and attendance swiping machine which automatically recorded the Applicant's date and time of arrival at work. It was noted that between January 1, 2008 and April 30, 2008, the Applicant arrived at work late 42 times; and between April 30, 2008 and August 31, 2008 the Applicant was late an additional 35 times.

19 The Tribunal also notes that quite often the Applicant was late in excess of 15 minutes despite his significant responsibilities and duties at the Ocean Club Resort.

20 Quite apart from the...