John Wright v Nassau Dairy Products Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 14 November 1997
• Docket Number: No.62 of 1997

In the Matter of The Industrial Relations Act

John Wright

Applicant

and

Nassau Dairy Products Limited

Respondent

No.62 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

The Facts:

The Applicant commenced employment with the Respondent sometime in 1974 as a route vehicle helper at a salary of Ninety-seven Dollars {$97.00} per week.

He was soon promoted to the position of Truck Driver with the Respondent, and his salary was increased to Two Hundred and Forty-two Dollars {$242.00} per week.

When the Applicant commenced employment with the Respondent, he was a member of a bargaining unit of The Bahamas Brewery, Dairy, Distillers, Bottlers and Allied Workers Union {hereinafter called, “the Brewery Union”}, and hence subject to its Industrial Agreement with the Respondent which commenced on 23rd June, 1972, and expired on 23rd June, 1974.

During the tenure of employment of the Applicant with the Respondent, there was no further Industrial Agreement between the Respondent and the Brewery Union, but on 10th December, 1982, the Respondent entered into an Industrial Agreement with Nassau Dairy Products Employees Union (hereinafter called, “the Employees Union”). This Agreement expired on 22nd June, 1988.

By letter dated 1st December, 1995, the Respondent suspended {without pay} the Applicant from its employment in the following terms:

“…You are hereby suspended from work until January 15th, 1996, at which time you will report for duty at 7.00 am.

There have been repeated complaints over an inordinately long period of time about your conduct on the job, including your insubordination, your lack of team spirit, your abuse of company's communications network and your “bad-mouthing” the company in the presence of customers and employees.

Your recent poor behaviour in leaving the delivery vehicle without completion of the day's work and your deliberate non-communication with your supervisor when you were requested to explain your actions cannot and will not be tolerated.

Management views with gravity the above described actions.”

The Respondent returned to work on the morning of January 15, 1996, and was given a letter terminating his employment with the Respondent as follows:

“Management views the matters outlined in letters to you dated March 23, 1994, December 1, 1995, and file memo of February 8, 1994, re: alleged sexual advances towards one of the young inmates of the Girls Industrial School very seriously and has decided to terminate your employment forthwith.”

The Applicant denies each and every material allegation referred to in the said letters and file memo, and alleges that he was wrongfully dismissed by the Respondent, and that he has incurred the following loss and damage as a consequence thereof:

“Notice pay — 96 weeks at $341.00 per week — $32,736.00

Six {6} weeks suspension without pay — 2,046.00

Vacation pay — {4 weeks} at $341.00 per week — 1,364.00

$36,146.00

Interest at 8%.”

The Respondent avers that its summary dismissal of the Applicant was reasonable and just in the circumstances, and counterclaims damages and costs against the Applicant due to his negligence and or misconduct.

Representative for Applicant — Mr. Obie Ferguson Jr.

Counsel for Respondent — Anthony A. Thompson Esq. assisted by Ms. Annette Longley.

DECISION AND REASONS

Consideration of the Evidence:

1 By Memorandum dated 8th February, 1994, the Respondent recorded and summarised the discussions held with officials from the Girls Industrial School relative to allegations that the Applicant had sexually harassed an inmate of the School. The Memorandum states as follows:

“…At 9.00 am. February 8, 1994, management along with yourself, attended a meeting at the Girls Industrial School called by Mrs. Miller the Superintendent of the School to answer allegations of the fondling of one of the inmates of the school by yourself.

There were several staff members who claimed that they saw you fondle a young girl, who was also in attendance at the meeting. You denied the allegations.

It was also stated that on the arrival of your vehicle at the gate the young female inmates would gather at the gate and you would offer them product samples and some of them would climb into the delivery van. This you did not deny.

After much discussion Mrs. Miller stated that she was concerned that after so many years in the employ of your company, if this matter was dealt with further you would lose your job and she agreed that you should be given a second chance, but she insisted that you never again deliver goods to the Girls Industrial School. Management agreed to this ban and you were given a verbal warning.”

2 It appears from the evidence that the following persons were present at the said meeting at the Girls Industrial School:

• 1. David Hudson — General Manager of the Respondent.

• 2. Thomas Hubbard — Management Representative of the Respondent.

• 3. Randolph Beneby — Sales Manager of the Respondent.

• 4. Mrs. Darnell Miller — Superintendent of the Girls Industrial School.

• 5. Sauleene Smith — Assistant Superintendent of the Girls Industrial School.

• 6. Zelma Wallace — Assistant Superintendent of the Girls Industrial School.

• 7. A few inmates from the Girls Industrial School.

• 8. The Applicant.

3 It is not absolutely clear from the evidence that Ms. Sauleene Smith was present at the meeting; Mr. Randolph Beneby, Sales Manager of the Respondent testified that she indeed was present; Mrs. Zelma Wallace of the said school said that she was not certain whether Ms. Smith was present; Mrs. Darnell Miller, the school's superintendent however testified that Ms. Smith was present at the meeting.

4 The Applicant categorically denied that he fondled or made any sexual advances to any of the inmates of the school.

5 Mrs. Miller said that while she does not recall the allegation being made that the Applicant fondled any of the girls, her Assistant Superintendent, Mrs. Zelma Wallace did say that he “longed out his tongue” at one of the girls.

6 Mrs. Miller said that she would not characterize the Applicant's actions as “sexual harassment.” In her opinion, it amounted to a form of flirting.

7 When asked by the Tribunal, if she would have approved of such conduct towards her young daughter, she hastily admitted that indeed she would not, and that such conduct was indeed serious.

8 Mrs. Zelma Wallace testified that the Applicant “longed out his tongue” at one of the inmates. She said that she considered his actions as sexual harassment. When asked by the Chairman how she would react if he “longed out his tongue” towards any minor daughter of hers, she responded that she would attack the Chairman.

9 Mrs. Wallace testified that the age range of the inmates at the school was 10 – 15 years. She said that when the Applicant made deliveries to the school, although the girls did not have any money, she would see them and some of her staff with ice-cream which they said was given to them by the Applicant.

10 Mr. David Hudson, Mrs. Miller and Mrs. Wallace all testified that at the meeting held at the Girls Industrial School to discuss the Applicant's behaviour towards the young inmates, the Applicant cried; in the words of Mr. Hudson, “he cried like a baby!”

11 Mr. Beneby also noted that the Applicant admitted at that meeting that sometimes when the girls came to the truck he would give them “spare drinks” if he had any.

12 By letter dated March 24, 1994, the Applicant was reprimanded for misconduct by Randolph Beneby, his immediate Supervisor and Sales Manager of the Respondent as follows:

“I find it necessary to warn you in writing regarding your attitude towards me as your Supervisor.

On Tuesday morning, March 22, 1994, you were instructed by me to load a truck. You resented my instructions and did not perform this task until you determined you would. You gave various excuses and talked back to me in the presence of Mrs. Johnson a customer and other staff members. As a result of your insubordimvtion the particular truck was late leaving the plant.

You also made no effort to deliver...