Dorsette v Mandara Spa Bahamas Ltd

• Jurisdiction: Bahamas
• Judge: Thompson, V.P.
• Judgment Date: 20 August 2015
• Court: Industrial Court (Bahamas)
• Docket Number: IT/NES/1586/2011
• Date: 20 August 2015

Industrial Tribunal

Thompson, V.P.

IT/NES/1586/2011

Dorsette

and

Mandara Spa Bahamas Limited

Appearances:

The applicant in person

Mr. Ferron Bethell and Ms. Camille Cleare of Counsel for the respondent

Employment Law - Industrial dispute — Termination of employment — Dismissal — Just cause — Misconduct — Whether there was just cause for dismissal — Whether applicant entitled to damages.

Thompson, V.P.

WHEREAS:

REASONS:

1 The applicant received an Employee Handbook which included a Code of Business Conduct and Ethics. No. 1 of the Conduct and Ethics states;

HONEST AND CANDID CONDUCT

“Each director, officer and employee owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest and candid. Deceit and subordination of principle are inconsistent with integrity.

Each director, officer and employee must:

• • Act with integrity, including being honest and candid while still maintaining the confidentiality of information where required or consistent with the Company's policies.

• • Observe both the form and spirit of laws and governmental rules and regulations, accounting standards and Company policies.

• • Adhere to a high standard of business ethics.”

2 At page 40 as numbered by the respondent and on page 4 of the handbook, clause 11 under the rubric “TERMINATION” it states;

“Termination

Your contract of employment may be terminated on the following basis.

• (a) The Company reserves the right in its absolute discretion to pay you, in lieu of notice, an amount equivalent to two weeks notice or two weeks pay in lieu of such notice in addition to two weeks pay for every year of employment or pro rata thereof to a maximum of 24 weeks.

• (b) Should you wish to terminate your employment, you are required to give the Company two weeks notice of such intent. After your second year of employment however, you will be required to provide four weeks notice of such intent.

• (c) 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:

  • (i) Stealing and or receiving guests', Company's, or other Employees' property;

  • (ii) Violent acts committed on the Company's premises or the premises or property of any affiliate or subsidiary of the Company;

  • (iii) Conviction of any crime;

  • (iv) Persistent tardiness;

  • (v) Being under the influence of alcohol or drugs;

  • (vi) Being party to or otherwise involved in the sale or purchase or attempted sale of purchase of drugs on the Company's property;

  • (vii) Possession or use of drugs;

  • (viii) Gross insubordination;

  • (ix) Neglect of duty

In the event of this agreement being terminated, any benefits which you receive either under this agreement or otherwise shall cease on the last day of actual work.”

3 Clause 15, page 6/42 states;

• 15. “APPLICABLE LAWS

  It is agreed that this Contract shall be interpreted in accordance with the Employment Act 2001, and that in the event of any conflict between the provisions of this Agreement and the Act, the Act shall apply.”

4 The evidence produced by the respondent and set out in the respondent's bundle of documents clearly shows that the applicant abused her position of trust by willfully manipulating the salary deduction system of the respondent wherein she, on several occasions withheld deductions. This was a very serious breach of trust as it placed the respondent in a cradle of mistrust in the eyes of other corporate entities who would have advanced loans to the applicant and would have been under the belief that it was dealing with an honest corporate citizen with great integrity.

5 In fact, the applicant is extremely fortunate in that her actions amount to serious criminal misconduct and the matter could have taken another route not at all in the applicant's best interest. For the sake of clarity we set out two of the salary deduction forms below;

Salary Deduction 1:

“IRREVOCABLE SALARY DEDUCTION AUTHORIZATION

Business: Mandara Spa

(PLEASE PRINT)

Address:

(PLEASE PRINT)

Name (Mr. Mrs. Miss) Chantelle Dorsette

(PLEASE PRINT)

National Insurance No. 015302774

Department: Accounts

Employee No: (not readable)

Direct Bank:

Applicable to Wyndham Date

To: The Payroll Department:

Mandara Spa (signature): BAHAMA ISLANDS RESORTS & CASINO COOPERATIVE CREDIT UNION LID

NEW:

INCREASE:

DECREASED:

SHUFFLE:

CANCEL:

Sir,

You are hereby authorized to deduct/cancel the sum of One Hundred &Fifty Five Dollars ($155.00) per week biweekly from my salary and pay the same to Bahama Islands Resorts & Casinos Co-operative Credit Union Ltd.

Code: __________ with effect from not readable __________to further notice______

Cancellation of deduction before the stipulated time must be authorized by Bahama Islands Resorts & Casinos Co-operative Credit Union Management.

Signature (C. Dorsette)

May 13th, 2008”

Salary deduction 2:

“P. O. Box SB-52835

Date: May 1st 2008

Nassau, Bahamas

Ph: 394-8076 Fax: 394-4235

WAGE DEDUCTION FORM

Name: Dorsette (Last) Anoris (Middle) Chantelle (First)

Employer: Mandara SPA Atlantis

Address: Paradise Island Ocean Dr.

Phone #: 363-3000 Ext 63569.

Payroll Clerk Name: Kayla Hall

Ext: 65289

Please accept this letter as authorization to deduct $450.00 bi-weekly from my salary for credit to Account # 3000971, Scotia Bank, Cable Beach Branch.

(PLEASE USE DEDUCTION CODE # 2384...