Delgardo Raschid Forbes v Water and Sewerage Corporation

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 03 April 2014
• Docket Number: No.140 of 2010

In the matter of the Industrial Relations Act Chapter 321

And

In the matter of the Employment Act Chapter 321A

Delgardo Raschid Forbes

Applicant

and

Water and Sewerage Corporation

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.140 of 2010

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Keod M. Smith Esq.

Counsel for the Respondent — Ms. Veronique J. N. Evans.

DECISION AND REASONS

The Facts:

1 The Applicant commenced employment with the Respondent as a field representative II on February 3, 2003.

2 He was summarily dismissed on November 30, 2009.

3 At the time of his dismissal his salary was $30,306.00 per annum.

4 The Applicant alleges that he was unfairly and/or wrongfully dismissed by the Respondent and claims damages for wrongful and/or unfair dismissal.

5 He also prays for an Order from the Tribunal that he be reinstated on his job by the Respondent.

6 The Respondent denies that it dismissed the Applicant wrongfully or unfairly and avers that he was summarily dismissed because it had lost trust and confidence in him as an employee because he had “disseminated confidential information regarding salaries of employees and published defamatory statements about the management of the [Respondent] on his Facebook page.”

7 In the circumstances the Respondent avers that the Applicant is not entitled to damages for. wrongful and/or unfair dismissal; and further, the Respondent should not be ordered by the Tribunal to reinstate the Applicant in his employment.

The Evidence:

8 The Applicant testified that he was dismissed by letter dated November 30, 2009 from the Respondent as follows:

“Mr. Delgardo Forbes

Technician

ufs:Sr. AGM/Internal Control & Compliance

ufs:Senior Manager — Water Quality

Water and Sewerage Corporation

Nassau, Bahamas

Dear Mr. Forbes:

RE

RE: LACK OF TRUST AND CONFIDENCE

This letter serves to advise that your actions have caused the Water and Sewerage Corporation to question your loyalty and as such we have lost trust and confidence in you as an employee.

In this regard you are hereby dismissed effective November 30, 2009. You are requested to return all property of the Corporation to your Supervisor forthwith.

Your separation settlement cheque in the amount of $22,004.12 may be collected from the Personnel Department on Wednesday, December 2, 2009.

WATER AND SEWERAGE CORPORATION

(sgd.) Anton Saunders

Acting General Manager

c. Board of Directors

Personnel”

9 The Applicant testified that at all material times he was a member of the Bahamas Utilities Service and Allied Workers Union (“the union” or “union”), and at the time of his dismissal he was a member thereof in good standing.

10 He said that up to the time of his termination he had job assessments/evaluations from his supervisor, Mr. Michael Swann, and that his performance had always been deemed to be above average.

11 As he recalled he had recently been promoted to Senior Technician in September of 2008; but as a result of pressure having been brought to bear on management by the existing union executives, he was almost immediately reclassified to the position of Technician during the same month.

12 There was a union election in mid 2008 (middle of July as he recalled) and he said that as a part of his campaign for Secretary General of the union, he released certain information in a “hand-out” regarding the conduct of existing union executives. The information included particulars of union executives' salaries.

13 The Applicant testified that he had originally been a candidate for Secretary General, but as a result of the disqualification of the candidate for President, he became a candidate for President.

14 In the handouts (fliers) addressed to members of the union the Applicant listed the salaries and positions of the existing union executives prior and subsequent to their respective job promotions. The union officers concerned were Carmen Kemp, Trevor Roberts, Tabitha Davis and Alexstine Clarke.

15 The handouts almost without exception provided specific details concerning the said officers' salaries.

16 The Applicant testified that these details could have been readily extrapolated from the Schedule to the relevant Industrial Agreement; and he noted further, that his father, Mr. Reginald Forbes, had been an experienced trade unionist at the Bahamas Electricity Corporation, and he (the Applicant) therefore became quite adept at making such extrapolations.

17 Moreover, he testified that in addition to personally making such extrapolations, he was also assisted by the proverbial “grapevine” together with information that he gleaned from various union meetings about the salaries of the incumbent union executives.

18 Nevertheless he said that he received the following warning letter from the Respondent as a result of his publication:

“Delgardo Forbes

April 18, 2008

Technician II

ufs: Sr. Manager

ufs: Sr. AGM/ICC

Dear Mr. Forbes:

I have observed you circulating information which represents confidential information on the Corporation's employees. The document circulated referenced coming from you addressed at the bottom as “Your New Secretary General, Delgardo Forbes”.

You are hereby notified that this is a breach of the Corporation's policies regarding confidential matters, which you signed and agreed to on initial employment with the Corporation. The Declaration regarding confidential matters is as follows:

• • “I am aware that I should not divulge any information gained by me, as a result of my appointment as an employee of the Water and Sewerage Corporation, to any unauthorized person, either orally or in writing without previous sanction.

• • I understand that I am liable for severe disciplinary action if I divulge without official sanction any information I may acquire in the course of my tenure with the Corporation or fail to take reasonable care of documents after my appointment has ceased.

• • I further understand that this Declaration covers information given in any speech, lecture, radio or television broadcast, or in the press or in book form.”

You must cease and desist from circulation of information concerning the Corporation's employees immediately. Should you continue following receipt of this letter, you will be subject to. severe disciplinary action. (Copies of the documents are attached for your reference).

Sincerely,

Water and Sewerage Corporation

Joan Turnquest

Senior Manager/Human Resources

cc. BUSAWU President”

19 Although the aforesaid letter was produced by the Applicant in evidence, he later testified that at a Conciliation Hearing at the Department of Labour, the letter was expunged from his record by the Respondent in the wake of his subsequent promotion to Senior Technician.

20 The Applicant testified that he never obtained any of the said salary details from the relevant administrative offices or personnel employed therein.

21 He said that he never broke into the Respondent's files in order to retrieve the information; and further, was never charged before the courts for breaking into the Respondent's files or for retrieving the said salary information unlawfully.

22 As far as he was concerned, he never violated or breached his Declaration of Confidentiality with the Respondent.

23 He said that his purpose for publishing the said salary details of the incumbent union executives was to illustrate how disingenuous they were in maintaining that the former President of the union, Mr. Huedley Moss, did not negotiate any salary increases for union executives.

24 This however proved to be a fragmentary truth because all of the incumbents were promoted to other positions carrying higher salaries.

25 He noted that 80% of the staff got promoted and received salary increases. The remainder did not because they were only recently hired.

26 As regards the allegation that he published uncomplimentary information on Facebook concerning the Respondent, the Applicant testified that he published the said information on his private Facebook page.

27 As far as he was concerned he was at liberty to inform members of the union concerning management of the Respondent; in fact he said that he considered that it was his duty to bring to their attention any matters concerning mismanagement by the Respondent.

28 The Applicant acknowledged that he was invited by intra-mail to attend a meeting at the General Manager's office at 10:00am on November 23, 2009 (presumably concerning his Facebook publications), but he said that he never received the intra-mail until “after the fact”, because he was “on the road” since 7:00am that morning.

29 He only learned about the meeting because his supervisor, Mr. Eldwood Donaldson, later asked him why he did not attend.

30 The invitation had been also extended to members of the Respondent's management team including Mr. Anton Saunders (Acting General Manager), Mr. Christopher Sherman, Deputy General Manager, Mrs. Daphne Simmons, Assistant General Manager responsible for Human Resources, Mr. Eldwood Donaldson Jr., Assistant General Manager, Mr. Robert Deal, Assistant General Manager, and Ms. Sandra Edgecombe, Chief Financial Officer.

31 He said that he never received a subsequent invitation from the Respondent to attend a meeting in order to discuss what it had in mind regarding his employment.

32 Finally, the Applicant testified that he did not consider his conduct towards the Respondent as disloyal in any way.

33 Ms. Cheri Hanna testified that she currently serves as the Assistant General Manager of the Respondent with responsibility for Human Resources.

34 She said that a letter of reprimand dated November 20, 2009 was delivered to the Applicant in the following terms:

“Mr. Delgardo Forbes

Technician

ufs: Sr.AGM/Internal Control & Compliance

ufs: Sr.Manager — Water Quality

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