Dwayne Smith v Gladstone Farms Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 30 May 1997
• Docket Number: NO. 24 OF 1997

In the matter of the Industrial Relations Act

Dwayne Smith

Applicant

and

Gladstone Farms Limited

Respondent

NO. 24 OF 1997

INDUSTRIAL TRIBUNAL

NASSAU/FREEPORT

The Facts:

The Applicant was at all material times employed with the Respondent as a ‘Tractor Head’ Driver in its ‘Growout’ Department. His duties included the hauling of container loads of poultry feed from Tropical Shipping Company Limited at John Alfred Dock, and delivering same to the premises of the Respondent.

The applicant testified that he commenced employment with the Respondent sometime in February, 1985. The Respondent adduced evidence to the contrary via notation on its “Warning/Suspension or Dismissal Notice”, that the Applicant's date of engagement was 24 ^th February, 1987.

The Applicant's employment was terminated by the Respondent on the 29 ^th August, 1994, and his salary at the time of his termination was $5.72 per hour or $228.80 per week. The applicant was also remunerated at the rate of $10.00 for each load of poultry feed that he collected from the said dock, and he stated that on average, he collected about five (5) loads of feed per day, and this was not disputed by the Respondent. His normal hours of work were 7a.m. – 4p.m., from Monday through Friday with one (1) hour each day for lunch.

The Applicant alleged that he was wrongfully dismissed by the Respondent because he refused to obey an order by the Respondent's live Production Manager, Mr. Martin Dyck on the 28 ^th August, 1994, to drive an International ‘tractor head’ {hereinafter called “the International”} which was in a dangerous and unlawful state of repair.

The Applicant further avers that the Respondent violated the Industrial Agreement dated 8 ^th April, 1994 between the Respondent and the Bahamas Commercial Stores, Supermarkets and Warehouse Workers' Union {hereinafter called “the Industrial Agreement”} which pertained inter alia to the Applicant, because the Respondent did not follow the correct disciplinary procedure and grievance procedure as prescribed by articles 20 and 21 respectively therein.

The Respondent alleged to the contrary that the Applicant's employment was terminated for just cause because the Applicant was grossly insubordinate and disobedient to Mr. Martin Dyck, his Department Head, in refusing to carry out his reasonable instructions. The Respondent averred that the condition of the International was such that it could be used to haul feed from the said dock to the Respondent's premises as indeed were the instructions of Mr. Dyck to the Applicant, and averred further, that it did not violate the Industrial Agreement as alleged.

DECISION AND REASONS

Consideration of the Evidence:

1 We feel that it is important to consider the Applicant's alleged gross insubordination against the backdrop of overall employee morale at the Respondent Company at the time of his termination, and we were assisted in this inquiry by the candid response to the Tribunal of the Respondent's Administrative Manager, Mr. Brian Nutt, who testified that the financial state of the Respondent at the time of the Applicant's termination was abysmal, such that the Respondent Company was on the verge of shutting down; he went on to say that this of course impacted directly upon the employees, and caused employee morale at the Respondent Company to be at an all time low.

2 The Applicant testified that sometime around 2:30 p.m. in the afternoon of the 28 ^th August, 1994, after his lunch break, a Mr. George Kerr {a trucking contractor} asked to borrow the Mack ‘tractor head’ {hereinafter called, “the Mack”} which was the Respondent's premier ‘tractor head’, used most frequently in the hauling and delivery of containers of poultry feed to the Respondent's premises. Evidence was led before the Tribunal to the effect that the Mack ‘tractor head’ was far superior to the international; it was a much newer and more modern vehicle; it had a power steering mechanism as opposed to the air assisted steering mechanism of the International.

3 The applicant stated that he told Mr. Kerr that he could not use the Mack because he {the applicant} had to make another run {in order to collect another container from the said dock}.

4 The applicant said that Mr. Kerr insisted, and said that Mr. Dyck had given him permission to use the Mack; he thereafter drove away in the vehicle along with his son.

5 The Applicant further testified that shortly after 4pm that day {28/8/94}, Mr. Dyck asked him if he could drive the International. He said that he did not respond to Mr. Dyck's inquiry, because he thought that he was joking; he said that he knew that Mr. Dyck was aware that he was a competent ‘tractor head’ driver, and hence he thought that the question was a joke.

6 The Applicant stated that about ten {10} minutes later, Mr. Dyck approached him again and instructed him to go to the said dock for a container load of feed. He said that he replied to Mr. Dyck in the negative telling him that he {Dyck} knew what was wrong with the International. He said further that Dyck replied, “You can drive anything on the road man; this is the Bahamas.”

7 The Applicant testified that the front signal lights on the International were broken; as far as he was aware, the rear end of the truck leaked oil onto the brakes; the mirror on the passenger side of the vehicle was missing, and the rear brake lights were not working. He said that the International had a history of bad brakes. For all these reasons, the Applicant said that he refused to drive the vehicle which was in such a dangerous condition.

8 The Applicant said that since he refused to drive the vehicle, Mr. Dyck told him that he may as well go home; he said that as he was about to leave the premises, someone came and told him that Mr. Larry Miller, the Personnel Officer, wanted to see him in his office. He said that he went to Mr. Miller's office and they both waited for the said union's shop steward, Mr. Henry Forbes. When Mr. Forbes arrived, Mr. Miller told the Applicant that Mr. Dyck had reported that he {the Applicant} refused to carry out his instructions to drive the International to collect a container of feed from the dock.

9 The Applicant stated that he admitted his refusal to Mr. Miller, and in turn Mr. Forbes explained the numerous defects in the International to Mr. Miller. Mr. Miller then told the Applicant to go home, and return the following morning, and he said that in the meantime a road test would be conducted on the vehicle,

10 The Applicant said that he returned to the Respondent's premises on the following morning, and reported to Mr. Miller as requested. He said that he noted that Mr. Steven Stanhope, the Manager of the Respondent's work shop, was attempting to ‘jump start’ the International. He said that eventually it started, and Stanhope and Miller then drove off for about five {5} minutes.

11 He said that when they returned, Miller said that he had to suspend him for two {2} days. He said Miller then went upstairs, and upon his return, he told him that Mr. Dyck said that he had to fire him and indeed he was fired at about 9:30 a.m. on 29 ^th August, 1994, the same day that he was purportedly suspended for two (2) days.

12 Mr. Martin Dyck on behalf of the Respondent opened his testimony by giving to the Tribunal an informative discourse on the need to provide the Respondent's chickens with a regular supply of a variety of feed, underlining the importance of ‘tractor head’ drivers being regular and prompt with their delivery of feed to the farm. Mr. Dyck testified that he approached the Applicant on two (2) occasions on the 28 ^th August, 1994 and requested him to go to the dock to collect some feed for the farm. He said that the Applicant refused to go. When asked whether the Applicant gave him any reason for his refusal, Mr. Dyck said that he did not recall him giving any reason. Dyck said that he enquired of the Manager of the work shop, Mr. Steven Stanhope, as to whether there was anything wrong with the International. He said that Stanhope replied that a new air compressor was just installed in the vehicle, and that the brakes were now functional.

13 Mr. Dyck stated that he was advised that the applicant should be suspended, and soon afterwards he was advised that the Applicant should be dismissed. He said that the following morning, Larry Miller and Stanhope went for a test drive in the International, and upon their return reported that the vehicle was functional. He said that he was not aware there were any defects in the vehicle, but was aware that it was difficult to steer, and unpopular with the ‘tractor head’ drivers.

14 Mr. Dyck also testified that indeed, he loaned the Mack to George Kerr, because Kerr had usually been very helpful to the Respondent; he said that very recently over a long weekend Kerr had made delivery of feed...