Domenic Brister Dean v Thompson Trading Company Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 11 May 2007
• Docket Number: No. 997 of 2006

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Domenic Brister Dean

Applicant

and

Thompson Trading Co. Ltd.

Respondent

No. 997 of 2006

INDUSTRIAL TRIBUNAL

NASSAU

Counsel for Applicant — Obie Ferguson Jr. Esq.

Counsel for Respondent — Mrs. Claire Hepburn and with her Kenneth L. Lightbourne Esq.

DECISION AND REASONS

The Facts:

1 The Applicant commenced employment with the Respondent in December of 1992, and was at all material times a rack salesman at the Respondent.

2 The Applicant alleges that he was wrongfully dismissed by the Respondent and initially claimed reinstatement of his employment, but subsequently claimed damages in lieu of reinstatement against the Respondent for the alleged wrongful dismissal.

3 The Respondent alleges that it did not wrongfully dismiss the Applicant and avers that it summarily dismissed the Applicant pursuant to sections 31 and 32 of the Employment Act, 2001, insofar as the Applicant had committed an act of gross insubordination against the Respondent and ergo committed a fundamental breach of his contract of employment.

4 The Respondent summarily dismissed the Applicant on April 7, 2006, by letter as follows:

“April 6, 2006

Dominic Dean

By Hand

Re: Termination of Employment Dear Mr. Dean,

As a result of your gross insubordination,, your employment with Thompson Trading Company Ltd. is hereby terminated with immediate effect.

Sincerely,

Antonio McHardy

Sales Manager”

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

Th Evidence:

6 The Applicant testified that his responsibilities as a salesman at the Respondent included: visiting the client stores of the Respondent, and examining the shelves in order to determine what products they required.

7 Upon this inspection he would place the order in the computer system and forward same to the Respondent's computers at the Respondent's warehouse where he was based.

8 The order is then printed and “picked” by a warehouse picker who would in turn place the items on a pallet.

9 The Applicant testified that he then checks the order with a warehouse supervisor, loads it on an assigned truck and carries it to the store.

10 On Monday, April 3, 2006, he said that he went to City Market, Harbour Bay, and he took an order from the store. Upon his return to the warehouse he was about to place the order in the system but was not allowed to. He said that he was approached by his supervisor, Mr. Antonio McHardy (who was supervisor in charge of the food stores) who told him that the order for City Market, Harbour Bay, was being picked and he wanted him to deliver it to the store.

11 He testified that he told Mr. McHardy that he hired him as a salesman, and he therefore wished to verify the order to see whether it was the same as the one that he took from the store. Mr. McHardy raised his voice and told him that he would do no such thing. He said that he again tried to convince Mr. McHardy that he had no problem delivering the order to the store once he was able to verify that it was the same one that he had just taken.

12 Mr. McHardy then said that he would take the store from him, to which he replied, “Fine!”

13 He said that Mr. McHardy then assigned the store to Mario, another salesman, and reassigned him to Super Value, Winton.

14 Later that morning Mr. McHardy asked him if he had anything to say to him. He replied that he did not know what he meant by that. McHardy then went his way, and he went his way.

15 The Applicant testified that on the following three days he continued to do his work as usual, and then on Friday, April 7, 2006, when he arrived at work, Mr. McHardy said that he wished to see him within fifteen (15) minutes. He said that he met with him in the Shrink Wrap Room whereupon Mr. McHardy told him that after speaking with Mr. Cash, the General Manager, they decided that his services were no longer needed.

16 He said that Mr. McHardy showed him a letter accusing him of gross insubordination and attempted to give it to him, but he did not accept it because he felt that he was not guilty of insubordination.

17 He said that he shook Mr. McHardy's hand, thanked him for the opportunity to work with him and walked away.

18 Finally, the Applicant testified that his basic salary was $9,260.00 per annum, and on average he earned annual commissions in the amount of $16,000.00.

19 Mr. Terrance Carey testified that he is currently employed as a salesman with the Respondent, and was employed with the Respondent during the tenure of the Applicant.

20 He said that during the morning of Monday, April 3, 2006, he was in the Salesmen's Room along with Keino Neely and Mr. McHardy. The Applicant arrived between 7:30 and 7:35 am.

21 He said that Mr. McHardy told the Applicant that he had an order for Barber Cream crackers to be delivered to City Market, Harbour Bay. The Applicant then inquired as to who gave the order to him. Mr. McHardy replied that he got the order from Mr. Moss, the Manager of the store.

22 The Applicant then curtly said, “Who made you the salesman?!” Those were his exact words.

23 Mr. Carey testified that he felt that the Applicant's attitude and response to Mr. McHardy was rude, and he expressed the view to Mr. McHardy that he should not allow him to speak to him like that.

24 He said that the Applicant was a rack salesman — i.e. he delivers everything that he sells, and the only time he checks any order is when he arrives at the assigned store.

25 He said that it is the job of the warehouse checkers to check items for loading on the trucks, and it is not customary for any salesman (including the Applicant) to do the checking. He noted that the system was in place “since King Hatchet was a hammer”, and in any event, he never heard the Applicant ask Mr. McHardy if he could have an opportunity to check the order that he (McHardy) had taken.

26 He said that exceptionally he (Carey) would check orders when specials were involved, but this was the exception to the rule.

27 Finally Mr. Carey testified that if he were Mr. McHardy, he would have fired the Applicant long ago. He said that the Applicant always acted as though someone owed him something.

28 Mr. Keino Neely testified that he works as a grocery salesman at the Respondent and to the best of his recollection on Monday, April 3, 2006, Mr. McHardy told the Applicant in his presence and that of another salesman, Mr. Terrance Carey, to deliver an order to City Market, Harbour Bay.

29 He explained that the Applicant's job as rack salesman differed from the grocery salesman's job insofar as the rack salesman is “hands-on”; he takes orders from client stores by laptop in the same manner as the grocery salesmen, but the rack salesmen are also required to deliver the goods to the client stores as opposed to the grocery salesmen who have assistants who do the deliveries for them.

30 He pointed out that he commenced employment with the Respondent as a rack salesman on the second Tuesday in March of 1992, and was eventually promoted to grocery salesman in 1997.

31 He said that as he recalled, when Mr. McHardy asked the Applicant to deliver an order to City Market, Harbour Bay, the Applicant asked him whether he could go to the store to determine whether the order was needed. Mr. McHardy then replied that he should go ahead and deliver the order to the store because indeed it was needed.

32 The Applicant replied that he was not delivering the order to the store unless he knew that the stuff could get on the shelves, and he further said to Mr. McHardy, “Who made you the salesman?!”

33 Despite Mr. McHardy's insistence, the Applicant refused to go to the store. McHardy then left the Salesmen's Room.

34 Upon his return he again asked the Applicant to go to the store, and the Applicant again refused.

35 Mr. McHardy then told him that if he was not going to deliver the order he would have to find someone else to do so; but before leaving he told the Applicant to make certain that the order was on the truck. McHardy then got up and left the room.

36 Mr. Neely testified that to the best of his recollection the Applicant never made reference to any order he himself had taken from City Market, Harbour Bay.

37 Finally, Mr. Neely testified that it was the job of the warehouse pickers and the warehouse checkers to pick and check the orders respectively.

38 Mr. Antonio McHardy testified that he is Sales Manager of the Respondent having commenced employment in 2005. He said that in that capacity he is responsible for eleven (11) chain stores owned by Super Value Food Stores Limited, City Market and Abaco Markets Limited.

39 He explained that he is responsible for merchandising and making certain that the products of the Respondent are well represented in all of their client's stores.

40 He said that he has a team of merchandisers/shelf stockers, and he pointed out that salesmen and merchandisers all come under his supervision and control.

41 He testified that the Respondent provides salesmen with laptops, and they are required to attend the client stores to take orders using the laptops. Almost invariably the orders are wired to the warehouse and “pulled” and checked by warehouse pickers and checkers respectively. The orders are then delivered.

42 In the case of the Snack and Confectionery Department the orders are delivered by the rack salesmen. He said that grocery orders are delivered by the warehouse truck drivers. He pointed out that the Applicant was responsible for confectionery items.

43 Mr. McHardy testified that on 31 ^st March, 2006 and April 3, 2006, the Applicant was responsible for City Market, Harbour Bay, and City Market, Rosetta Street.

44 He said that City Market, Harbour Bay is the flagship store of the Respondent, and the President of the Respondent...