Ken Rolle v Morton Bahamas Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 16 September 2011
• Docket Number: IT/NES/1195/08

Between:

Ken Rolle

Applicant

and

Morton Bahamas Limited

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1195/08

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Obie Ferguson Esquire Counsel for the Applicant

Oscar Johnson Jr. Esquire Counsel for the Respondent

DECISION

1 This matter came on for hearing on the 5 ^th May, 2010. The Originating Application was issued July 03 ^rd, 2008 and received September 29 ^th, 2008. The claim being made by the Applicant as set out in the Originating Application is breach of the Industrial Agreement, breach of the Employment Act 2001 and breach of the Industrial Relations Act and the reason set out at No. 12 of the Originating Application is “Union Busting.” The remedy sought by the Applicant is re-instatement and compensation. Quite a number of witnesses gave evidence in this matter with the first being the Applicant. The length of this judgment is indicative of the number of witnesses and an effort to record all of the evidence given at trial.

EVIDENCE OF KEN ROLLE

2 The Applicant says that he was employed with the Respondent from the 25 ^th October, 1983 up to the time of his termination which according to him, took place on May 23 ^rd, 2008 by way of a letter of even date. The Applicant's evidence is that he was employed with the Respondent for approximately twenty-five (25) years rising to the position of Master Electrician/Foreman.

3 At the time of his termination, his salary was $618.00 per week. The Applicant testified that he was a part of the Bahamas Industrial Manufacturers and Allied Workers Union (“the Union”) which had an agreement with the Respondent and according to the Applicant, the agreement with the Union contained all of the terms and conditions of his employment. The Applicant was at the time of his termination the Vice President of the Union. Counsel for the Applicant at this point referred the Applicant to the Union's Industrial Agreement with the Respondent. This document was entered into evidence as Exhibit “K.R. 1”.

4 The Applicant testified that he was told by Mr. Vivian Moultrie of the Human Resources Department of the Respondent that the Applicant was being terminated for his alleged involvement in a disconnection exercise of the electrical power of one Mr. Patrick Williams' residence located in Matthew Town, Inagua and for threatening the Respondent's employees Mr. Leo McIntosh and Mr. Dean Mullings. Additionally, his termination was also attributed to him leaving his place of employment without proper authorization.

5 The Applicant was then directed to Article 15 of the agreement and asked to read it out aloud which he did. Article 15 is set out in full below:

Article 15:

“DISCIPLINE & DISCHARGE

• 15.1 DISCHARGES: If the Company believes that an employee has been guilty of an offence which may warrant discharge or suspension, the Plant Manager or his designee shall arrange a meeting with the employee and any available Local Union Executive before taking disciplinary action. An Employee so affected may be suspended with pay for no more than two (2) days including the day of the event giving rise to the Company taking action against the employee. The Company will make a final determination within the above time frame. In the event that the Company's final determination at such meeting is that just cause for discharge exists, the employee will be terminated at that time, or in the case of suspension without pay, the time of such suspension will be provided to the employee and a Local Union Executive will be promptly advised of such action. Neither the Company nor the Union shall entertain any grievance for the discharge or suspension of an employee unless a written grievance is presented to Plant Manager within Seven (7) calendar days after a Union Executive is informed of the discharge. The first Two (2) Steps of the Grievance Procedure will be waved for such grievances and a Step III meeting will be scheduled as soon as practical.

• 15.2 Employees will be disciplined only for just cause.

• 15.3 When an employee is warned in writing or demoted a notice of such shall be given in writing to the employee and to the Union.

• 15.4 Provided there are no additional written warnings or non-paid suspensions on an employee's Disciplinary Record, the Company shall remove all written documentation relating to the offenses twelve (12) months after the dates of such actions.

• 15.5 Each employee shall have the right to request Union Representation in all cases of an accusation of violation of Company's Policy or charges made against him which may result in dismissal, demotion or suspension.

• 15.6 No disciplinary action will be taken with respect to an employee's charge or offense of which he has been acquitted or been found not guilty in a criminal court unless that offense violates a known Company policy, rule or accepted operating practice or this Agreement.

• 15.7 No action of discipline for absenteeism will be taken against an employee who, through no fault of his own doing, is remanded into custody for forty-eight (48) hours or is summoned by the crown or police to appear for questioning or to give evidence, if proper verification is provided to the Company within forty-eight (48) hours of such action.

• 15.8 Although fixed penalties are not established for major breaches, major breaches may call for immediate dismissal. Major breaches by way of example only and not limited to the following are:

  • (a) Theft;

  • (b) Fighting, or acts of physical violence while on Company property;

  • (c) Acts resulting in major damage to Company's property;

  • (d) Absence from duty without leave for a period of four (4) working days;

  • (e) Possession, use, sale of or a conviction relating to any narcotics or dangerous drugs as defined in the Dangerous Drug Act;

  • (f) Sexual Harassment;

  • (g) Willful unauthorized use of The Company's vehicles or vehicles under the control of The Company.

  • (h) Altering, falsifying or misrepresenting The Company's records;

  • (i) Selling of alcoholic beverages while on the job.

  • (j) Insubordination which is the direct refusal to obey the direction of a member of management that is not illegal, unsafe, immoral, or in violation of this Agreement.

• 15.9 Operating Procedures progressive discipline will be issued to the employee. The following procedures will be followed:

  • (a) On the first occurrence of any minor breach, a verbal reprimand shall be given to the employee in the presence of a Shop Steward.

  • (b) On the second occurrence of any minor bieach a written warning notice shall be given to the employee and a copy to the Shop Steward within two (2) working days of the employee receiving his notice.

  • (c) On the third occurrence of any minor breach, the employee shall be given a notice in writing of immediate suspension without pay. Subject to the provisions of Article 21.1 of this Agreement.

  • (d) The fourth occurrence of any minor breach will be cause for a review of the employee's ability to remain employed by the Company. Again the provisions of Article 21.1. will apply to this review of the employee's employment status.”

6 The Applicant went on to testify that before disciplinary action was taken against him there was no meeting. However, when asked by his counsel if there was any meeting, the Applicant answered “Yes”. He says there was a meeting on May 5 ^th, 2008 when he went to his place of work. He says he was accompanied by the Secretary General of the Union Mrs. Jennifer Brown. Also present at the meeting was Mr. Vivian Moultrie and Ms. Donna Weir, who represented the Respondent. The Applicant testified that he was informed by Mr. Moultrie that the meeting was called to advise the Applicant of his suspension for his alleged involvement in the disconnection exercise in that it was suspected that he re-connected the electricity supply to Mr. Patrick Williams' house.

7 At this point the Applicant was asked by the court what was involved in a disconnection exercise. He responded by saying that a list of names is prepared and then sent to the electrical supervisor to have the disconnections carried out. The Applicant was then directed to a letter in the Applicant's bundle dated the 5 ^th May, 2007. However, it was acknowledged by both parties that there was a typographical error in the date of the letter. It ought to have been 2008. This was a letter of suspension which was handed to the Applicant at the above-mentioned meeting. This letter was read into the record and we take the liberty of setting it out in full below:

“MORTON SALT

A. Rohm and Haas Company

May 5, 2007 (typographical error with date)

Mr. Ken Rolle

Matthew Town

Inagua, Bahamas

Mr. Rolle:

You are suspended with pay for Two (2) working days effective today, Monday, May 05, 2008, pending the investigation of your alleged involvement in the Company's Electrical Disconnection Exercise May 1, 2008, and May 2, 2008.

You may submit a written explanation of any actions or involvement by you in the above mentioned exercise, with your signature before returning to work on Wednesday, May 7, 2008.

You will return to work, on your normal shift, Wednesday, May 7. 2008, at which time you will be given an opportunity to explain or defend any such actions, and receive a Company determination.

Sincerely;

MORTON BAHAMAS LIMITED/ROHM & HAAS

(Signature)

Vivian Moultrie

Manager of Administrative Services

Cc: BIMAWIT

8 The letter of May 05 ^th 2007/8 which was entered as Exhibit “K.R. 2” is patently clear and it gives the Applicant an opportunity to go off and prepare an answer to the allegations levied against him. In fact the letter gives the Applicant a choice of either preparing a written response to the allegations or simply preparing a response for Wednesday May 07 ^th, 2008.

9 There was a subsequent letter dated May 06 ^th, 2008 which was entered into evidence as Exhibit “K.R. 3”. This...