Earl Nonhomme v Abaco Markets Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 24 January 2012
• Docket Number: No.1288 of 2009

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Earl Nonhomme

Applicant

and

Abaco Markets Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.1288 of 2009

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Reno Bethell Esq.

Counsel for the Respondent — Darren O. Bain Esq.

DECISION AND REASONS

The Facts:

1 The Applicant, age 31 years commenced employment with Solomon's on August 4, 1998 as a shelf boy.

2 It is not disputed by the parties however that the Applicant was continuously employed by the Respondent, although no evidence was led which indicated the relationship between Solomon's and the Respondent; and in particular, whether the former was acquired by the latter via merger, acquisition or otherwise.

3 The Applicant alleges that he was wrongfully dismissed by the Respondent during early September of 2008, and claims damages and ancillary relief against the Respondent for wrongful dismissal.

4 The Respondent avers that the Applicant was summarily dismissed on September 15, 2008 for just cause inasmuch as he had:

• i. “Failed to follow Company Policies which resulted in loss on the Company's part.”

• ii. “Removed, and/or caused to be removed, property of the Respondent without authorization or payment”.

5 In other words, the Respondent alleges that the Applicant had committed a fundamental breach of his contract of employment within the meaning of section 31 of the Employment Act, 2001.

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

The Evidence:

7 The Applicant testified that he commenced employment with Solomon's as a shelf boy on August 4, 1998.

8 He said that throughout his tenure of employment with the Respondent he was consistently made aware of its policies and procedures, and more particularly, the procedures applicable to his job duties and responsibilities.

9 He said that in his capacity as a shelf boy he became familiar with his duties and responsibilities through his Manager who would hold regular meetings to inform staff and remind them of their duties and responsibilities.

10 As a shelf boy his primary responsibility was to stock the shelves in an orderly and presentable fashion.

11 The Applicant testified that in 2005 he was promoted to Grocery Supervisor and his responsibilities were:

• i. To make certain that his subordinate staff were in place.

• ii. To make certain that the Purchasing Department got their orders.

• iii. To make certain that the inventory in the warehouse was distributed throughout the aisles in the store.

• iv. To make certain that his staff wore proper uniforms and nametags.

• v. To ensure that the shelves in the store were clean and organized properly.

12 He said that management meetings were held for supervisors and managers every Friday at about 2:00 pm; and he noted that Mr. Calvin Dean, the District Manager and his prior Manager would conduct the meetings in the form of roundtable discussions. Each manager and supervisor was required to give his input at the meeting. Matters concerning company policy and areas that required improvement were discussed.

13 The Applicant noted that if he discovered that certain items were short on the shelf, he would go to the Purchasing Department, and they in turn would order them.

14 The items would originate from the warehouse, and the warehouse staff was required to check off the items prior to delivery to the Purchasing Department.

15 Under no circumstances could he simply go to the warehouse and remove items in order to replenish the store shelves.

16 The Applicant testified that as far as deliveries were concerned, paperwork had to be prepared by the Warehouse Manager. The customer gets a receipt, and the store keeps a receipt.

17 The customer was required to pay for the items in advance before they were identified and pulled for delivery.

18 The Applicant testified that his staff was completely aware of the procedure, and that they were all informed of the procedure by management of the Respondent. In fact, he noted that the procedure was in place long before he commenced employment with Solomon's.

19 He said that in late August of 2008 he was transferred to the Respondent's store in Abaco (Cost Right). He noted that the Respondent's procedure was universal with respect to all of its stores including the Abaco store.

20 Prior to deliveries being made paperwork would have to be prepared and then the Warehouse Manager would take care of the orders. Invoices are delivered to the customers and the truck driver keeps copies of the invoices.

21 He testified that he had no dealings with the warehouse; that was not included among his responsibilities and duties.

22 As Grocery Supervisor in Abaco he was to remain on the floor at all times as indeed was his duty in Nassau or at any of the Respondent's stores.

23 He said that he recalled that the Manager of the Abaco store, Mr. Rick Knowles, had informed him that an order of goods was scheduled to arrive at the warehouse on Saturday, August 30, 2008. Mr. Knowles was his manager in Abaco.

24 Mr. Knowles instructed him to remain in the warehouse on that Saturday for the said inventory to arrive. He further told him that the driver would knock on the door when it had arrived.

25 As he recalled, the inventory arrived at about 11:00am. It was offloaded from the truck by forklift, and he in turn carried it into the warehouse by means of another forklift.

26 He did not recall seeing any invoices relative to the said inventory; but he said that he felt obliged to carry out Mr. Knowles instructions because he was his boss. He was not concerned as to whether the warehouse had received the appropriate documentation relative to the inventory, whether the warehouse was in possession of the corresponding invoices relative thereto or whether the designated truck driver received the like invoices prior to delivery of same to the consignee because he was simply taking the instructions of his boss, Mr. Rick Knowles.

27 He said that it took him approximately one (1) hour to offload the inventory into the warehouse because it consisted of some twelve (12) pallets.

28 As the Applicant recalled, Mr. Knowles then delivered the inventory which he (Knowles) said was destined for RNS Food Store.

29 He said that at the beginning of September 2008 Mr. Calvin Dean visited the Abaco store and said that he saw him on the video camera carrying some of the inventory away. He denied the allegation.

30 Finally, the Applicant testified that he returned to Nassau whereupon he met with Ms. Marvette Minnis, the Human Resources Manager, who suspended him on September 10, 2008, pending further investigations for his alleged breach of company policy.

31 He said that he was later fired by the Respondent in September of 2008 for breach of its policy.

32 Mr. Calvin Dean testified that he is the District Manager of the Respondent.

33 He said that in his capacity as District Manager his duties and responsibilities to the Respondent included:

• i. Managing its day-to-day business.

• ii. Ensuring that all of the Respondent's stores open on time.

• iii. Ensuring that the proper staffing is in place.

• iv. Ensuring that proper inventory levels are maintained; and

• v. Ensuring that all staff function in their designated capacities on a daily basis.

34 He said that as District Manager, he conducted and still conducts regular meetings with all managers and supervisors of the Respondent.

35 He noted that the Applicant was one of his supervisors and that he had regular meetings with him concerning company policies and procedures.

36 Mr. Dean testified that the Applicant in his testimony gave a fair account to the Tribunal of the Respondent's policy with respect to deliveries.

37 He reiterated that as far as deliveries are concerned, once a customer purchases goods, an invoice or a picking ticket is generated (by the computer). The order is then picked by a staff member.

38 Once the order is collected it is checked off by the employee who would have picked it, and a warehouse staff member, and then it is loaded onto the truck for delivery.

39 He said that the Applicant's function as Grocery Supervisor was to supervise the Grocery Department including the day-to-day stocking and replenishing of items, ensuring appropriate staffing levels, and ensuring that the staff followed company policy.

40 He said that when inventory arrives at the Respondent's Abaco store, the Assistant Manager (who doubles as the Warehouse Manager) would be responsible for offloading and receiving the inventory and slotting it in the warehouse in the appropriate areas. He is also to ensure that the policies of the Respondent relative to deliveries are adhered to. The Assistant Manager has a team consisting of about five (5) persons, all of whom would assist in receiving and delivery of inventory.

41 Mr. Dean testified that absolutely no inventory is received or delivered on Saturdays at the Respondent's Abaco store. The Warehouse Manager and his staff are not supposed to be there on Saturdays. Everybody associated with inventory is off. The warehouse itself is physically closed with a roll down gate and a fencing gate; and both are locked.

42 He said that he received confidential information about suspicious activities occurring on the Respondent's Abaco premises on two (2) consecutive Saturdays — August 30, 2008 and September 6, 2008.

43 The informant advised that the warehouse door was being opened and closed, and that deliveries were being made on Saturdays.

44 He said that as a result of that information, he visited...