David Thurston v Bahamas Supermarkets Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 24 April 2013
• Docket Number: IT/NES/1389/09

Between:

David Thurston

Applicant

and

Bahamas Supermarkets Limited

1 ^st Respondent

VS.

Mark Finlayson

2 ^nd Respondent

VS.

Garret O. Finlayson

3 ^rd Respondent

VS.

Barry Newman

4 ^th Respondent

Before:

His Honour Keith H. Thompson:

IT/NES/1389/09

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Ms. Eleanor Albury, Counsel for the Applicant

Mrs. Constance Rolle, Human Resource Manager for the Respondent (appeared two mornings)

DECISION

1 This matter was scheduled several times to commence hearing. However, we cannot help but assume that the Respondents in this matter have very little regard for this institution in that everything that needed to be done to make the Respondents aware of hearing dates was done. We have received any number of excuses as to why they have not graced us with their presence.

2 Initially Graham, Thompson and Company were the Attorneys of record. On the 24 ^th April, 2012 Mr. Ken Lightbourne appeared on behalf of the Respondents and requested that the Applicant and his witnesses give their evidence and that thereafter there be an adjournment. He also indicated that the Respondent was prepared to consider settlement but not for Twenty-Eight Thousand ($28,000.00) Dollars. We reluctantly acceded to the Respondent's request and allowed the parties to discuss settlement.

3 It was agreed that the matter was to continue on the 16 ^th and 17 ^th May, 2012. The matter continued on the 16 ^th May, 2012 only to be advised by Mr. Lightbourne that his firm had not received any further instructions. The matter was then adjourned to the 5 ^th and 6 ^th June, 2012 and documents were to be exchanged on or before May 25 ^th, 2012. In the interim Graham, Thompson and Company were removed as counsel and attorneys for the Respondent and were to be replaced by another attorney. However, that attorney advised the Tribunal that her firm did not receive any instructions.

4 The matter resumed on July 18 ^th 2012 and there was no appearance by the Respondents nor was there an appearance by any legal representative on their behalf. We proceeded with the hearing pursuant to Section 59 (1), (a) of the Industrial Relations Act Chapter 321 which states;

“In addition to the powers conferred on it under the foregoing provisions of this Act the Tribunal may —

(a) proceed to hear and determine any question arising in connection with a dispute in the absence of any party who has been duly summoned to appear before the Tribunal and has failed to do so;

5 As we have also had no cooperation from the Respondent in this matter and upon the application by the Applicant, we availed ourselves of Section 59 (1), (b) (ii) which states;

“In addition to the powers conferred on it under the foregoing provisions of this Act the Tribunal may —

(b) order any person —

(ii) who in any other case the Tribunal considers it just to be joined as a party, to be joined as a party to the proceedings under consideration on such terms and conditions as the Tribunal may direct.

6 In addition to the above the Tribunal also proceeded on Sections 65 (2) and (3) which state;

(2) “The Tribunal may, during the course of any dispute pending before it direct that any agents of the employer or any successors to or any assignees of, the business of the employer who is a party to the dispute shall be joined or substituted as a party to the dispute, and any order or award of the Tribunal in such dispute (whenever made) shall, save to the extent that it is otherwise expressly provided in such order or award, be binding on the successors or assignees of the employer.

(3) For the purposes of this section, any question whether a person is the agent of the employer or the successor to or an assignee of another shall be determined by the Tribunal from all the circumstances in accordance with good conscience and the Code of Industrial Relations Practice and shall be binding on the persons referred to in subsection (1) and is conclusive for all purposes connected with the order or award.”

7 Additionally, the Tribunal also exercised its authority pursuant to Section 16 Rule (1) of the Industrial Relations (Tribunal Procedure) Rules 2010 which states.

1. “The Tribunal may at any time on the application of any person made by Notice to the Secretary in Form M in the Schedule or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary”.

8 As a result therefore we have joined the principals of Bahamas Supermarkets Limited in the persons of Mr. Mark Finlayson, Garret O. Finlayson and Mr. Barry Newman in their personal capacities.

EVIDENCE OF THE APPLICANT:

9 The Applicant commenced employment with the Respondent in August of 2002 and was terminated in or about August or September of 2009. At the time of his termination, he held the position of Co-Manager. The Applicant was verbally dismissed by Mr. Peter Goudie. At the time of dismissal the Applicant's salary was $739.28 and his last posting was at the Harbour Bay location.

10 The Applicant was told that he was sent home because there was a refund that was put through and that is what he was fired for. The Applicant did not put the refund through. He was accused of instructing someone else to put the refund through. He denies that he instructed anyone to carry out such a transaction.

11 On the day of the incident, it was $90.00 however, the company said it was $100.00 but a refund was not put through by the Applicant. On the day of the incident the Applicant was not feeling well and left work early. The Customer Service Manager, Patricia Johnson was left in charge as she had taken over the shift.

12 The Applicant's further evidence is that he advised Ms. Campbell, the Head Book Keeper at Harbour Bay that he wasn't feeling well. He left the float at the customer service desk with Ms. Campbell and Ms. Johnson. In fact, he recalled that it was actually left with Patricia Johnson.

13 The problem occurred when Ms. Johnson was ready to leave and she took the float to Ms. Ava Dorsette the Assistant Book Keeper who reconciles. Ms. Dorsette didn't immediately reconcile the float because she was dealing with another cashier. Ms. Johnson couldn't wait any longer after having waited for a half an hour so she decided to leave.

14 The Applicant was off the following day but when he did return to work he was approached by Ms. Campbell who said to him; “Thurston, your float was $90.00 short.” He became very upset and asked how. The Applicant then called Mr. Nelson Moss who was the Manager and told him that Ms. Campbell told him that the float was short but he was already aware of it. The Applicant told Mr. Moss that he wasn't paying that because he didn't do anything. Mr. Moss then told the Applicant to let Ms. Campbell deal with it.

15 Ms. Campbell asked the Applicant if he didn't remember giving any refunds and he didn't recall any refunds. Ms. Campbell thereafter said that she would put a refund through. When Ms. Campbell did it a day or so later, the Applicant was off. One Zelpha Hall, who had a telephone contact for the Applicant gave his number to Ms. Campbell who called him and asked him for his code. After having obtained the code, she put the refund through. The Applicant says he told Mr. Goudie that he didn't know why the refund was put through. However, he says he was accused of authorizing the refund.

16 According to the Applicant, Ms. Campbell was an honest person who had a line of communication with the Vice President of Finance and she would have called him. In the Applicant's words; “there was a witch, one Barbara Laing who also worked there who about ten (10) days later took reports from persons who were working”.

17 The Applicant worked either 6:00 A.M. – 2:00 P.M. or 2:00 P.M. — closing. On the 14 ^th August, 2009, the Applicant left work about 12: 00 or 1:00 P.M. The Applicant says that he was never interviewed before the day of dismissal. At the meeting on the day of termination, Mr. Goudie and Mr. Floyd Moree were present. Mr. Goudie asked the Applicant what happened with the refund and the Applicant says that he didn't know what happened. He was told that it was put through under his code, however the Applicant says that he never instructed...