James Glinton v Harbourside at Atlantis

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 20 October 2011
• Docket Number: IT/NES/1213/08

Between:

James Glinton

Applicant

and

Harbourside at Atlantis

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1213/08

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Obie Ferguson Counsel for the Applicant

Miss Camille Cleare Counsel for the Respondent

DECISION

1 The Applicant James Glinton commenced employment on January 01 ^st, 2007 and has filed an Originating Application claiming Wrongful Dismissal. The Applicant's evidence is that he was fired for doing something he was instructed to do by his supervisor Ms. Linda Evans, who at the time was the Assistant Director of Housekeeping. At the time the Applicant was a Tower Manager. He was responsible to ensure that all staff was in place, checking of rooms, checking of public areas and roll calls, room management, assignment of rooms and to make sure that there was coverage for evening staff.

2 The Applicant's further evidence is that he was on the 3:00 p.m. shift. When he arrived at work there was a big project going on and he was instructed by Linda Evans to take the truck and move all of the cribs, discarded mattresses, discarded ash urns, discarded old brooms, mops and pallets and take them to the dump. The Applicant says that he had the line staff load the truck and secure the items with an old sheet. He drove the truck over the bridge to the dump. His evidence is that Ms. Linda Evans gave him permission to drive the truck.

3 When asked if there was a security mechanism, the Applicant explained that the truck is usually parked at the rear of housekeeping and the key is secured in the security booth. If someone wants to drive the truck, you had to be authorized and sign out for the key. The Applicant was asked by his counsel how would security know he was qualified and he responded by saying that as a manager he drove the truck before. He says you would have to go to security and sign out the key and when the task is complete you sign the key back in. He returned the key when he returned.

4 Once back on the property, the Applicant went to the office where the dispatchers work. One dispatcher told the Applicant that the front office manager came by the dispatcher's office so the Applicant went to see if she was looking for him, she only needed the front door opened. When the Applicant started his 3:00 p.m. shift, the area in front of the front door had been pressure cleaned earlier and was cordoned off with caution tape so that the tourists wouldn't walk on the wet floor.

5 The Applicant says that he went on to explain to the front office manager that he had to make sure that the tiles were properly dried. As he was walking along with the front office manager, he says he was explaining to her what it was that Ms. Evans instructed him to do and her response to him was “oh! That's what she instructed you to do, some heads going to roll for this.”

6 After this, according to the Applicant, it was work as usual and he went home at the end of his shift. The following morning when the Applicant reported to work he had to report to Mr. Moultrie's office where he met with Mr. Moultrie, Tenisha and Ms. Evans and they discussed the fact that he drove the truck without being authorized to do so.

7 After the meeting he says he went back to his work station and at the end of the shift he was suspended for two (2) days. Upon the Applicant's return to work, he was supposed to report to Harbourside Human Resources Department but instead was summoned to Mr. Moultrie's office where they discussed the same matter further. It is the Applicant's evidence that when he told Mr. Moultrie that Ms. Evans told him to take the truck; Mr. Moultrie said that Ms. Evans was not authorized to tell him to take the truck. In fact he says that Mr. Moultrie said that; Ms. Evans nor Tenisha had authority to tell anyone to take the truck. If they wanted something done which involved the truck they needed to see him or Ms. Judith Thompson. After this, the Applicant says that Mr. Moultrie told him he had to fire him; they had to let him go.

8 It is the further evidence of the Applicant that he was not paid anything. The Applicant says that he cannot remember whether he was paid for time worked prior to and up to the time of termination. The Applicant was employed with Harbourside for one (1) year and six (6) months. He testified that he drove the truck before this incident and he was authorized by the lady who does the supply part of the job. This was on an occasion when they needed some stuff from the warehouse. In order to access the truck on that occasion, he went to security and signed out for the key and let security know that he was going to get some supplies. On this occasion, he was not suspended.

9 The Applicant recalled signing a contract of employment to which he was referred at Tab 1 of the Respondent's bundle of documents. The Applicant was directed to page 7 of the contract and identified and acknowledged his signature. The Applicant says that he was never given a copy of the manager's handbook. He was directed to page 5 of the contract to the termination clause and was asked by his counsel if he saw or could point out the reason for his termination and the Applicant said he didn't see the reason in the section. For clarification the section was section 15(c).

10 The Applicant was then referred to Tab 6 of the Respondent's bundle which was the acknowledgement page. The Applicant's evidence is that he did not acknowledge receipt of a Harbourside Handbook. However, the signatures appear to be the same but this Tribunal is no expert and will weigh the value of the document as presented by the Respondent in conjunction with the evidence of the Applicant.

11 At the time of termination the Applicant says his salary was $500.00 per week after deductions. The Applicant was then referred to page 3 of the contract at Tab 1, section 8 (Medical Insurance). The Applicant says that he was a member of the medical insurance plan which was paid for by the company. Likewise on page 4, paragraph 9 (Life Insurance), the Applicant says the company paid for life insurance also. When referred to paragraph 10 (vacation), the Applicant says he would have been entitled to two (2) weeks vacation. He only received one (1) week and didn't receive any vacation for the six (6) month period.

12 The Applicant was then referred back to page 5 paragraph 15, more specifically section 15(a), (1) and was asked to read it out aloud. This section deals with Notice. In this case the subsection is lifted directly from section 29(1), (c) of the Employment Act 2001. In any event, the Applicant's evidence is that he was not paid any notice pay. The last question to the witness by his counsel was whether he was a member of any union to which he answered in the affirmative and named the union of which he was a member as the Bahamas Hotel & Managerial Association.

13 Under cross-examination Mr. Glinton confirmed that he was the Tower Manager and that it was a position of considerable responsibility. The witness was then referred to Tab 3 of the Respondent's bundle of documents and more specifically No. 11 which is listed as a part of the Applicant's responsibility, which is under the rubric “MAIN DUTIES AND RESPONSIBILITIES” and says;

“Supervise section staff ensuring that departmental policies and procedures are followed.”

14 After reading the above, the Applicant was asked if he agreed that it was his job to know the policies and he answered yes.

15 The Applicant confirmed that he signed for and had a copy of the employee handbook. This contradictory evidence by the Applicant is that earlier in examination in chief, he denied ever signing for a handbook. However, he couldn't recall whether he gave a copy to his attorney. The Applicant further confirmed that he understood his obligations under the handbook and acknowledged that it was an important document. The Applicant also could not remember the last time he read the handbook. The Applicant also knew that he could always get a copy from the human resources department if he needed one. The Applicant however, says he was not aware that the handbook was updated from time to time.

16 The Applicant was then referred to page 11 and asked if it was Harbourside at Atlantis that hired him and he responded by saying that he had signed two contracts. Having said that, the Applicant was directed to Tab 1 page 8 and asked if he saw his signature which he confirmed as being at the bottom of the document. The Applicant was directed to the first page of the contract to the top right hand corner to where the word “HARBOURSIDE” is and asked if that was the company that hired him and he answered in the affirmative.

17 According to the Applicant he started his shift on the day in question at 3:00 p.m. He was on the 3:00 – 12:00 shift. He reported to Ms. Linda Evans. He says he saw her in the lobby by the front door. They were pressure cleaning. According to the Applicant, every 3:00 p.m. shift manager does a walk about of the property. This was when he says he saw Ms. Linda Evans and she told him what she wanted done. He says he was told to take the truck and dispose of the cribs, mattresses, pallets ash urns etc. When asked if it was a Mac truck or a pick up truck he said that it was a truck with a back like an F—150. It was a two door truck.

18 Under further cross-examination, the Applicant testified that no one went with him to the dump. The truck was loaded by what he referred to as buy out staff. They are brought in specifically for the following day. There were two of them. The Applicant explained that the debris came about as a result of the hotel changing some mattresses and they had some aluminum and wooden cribs that were stored in a corner. There were about ten (10) cribs. The bottom of the ash urns had already started to rot. The Applicant says he was asked to remove all of...