Kristasha Williams v Mandara Spa (Bahamas) Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 19 October 2012
• Docket Number: IT/NES/1265/08

Between:

Kristasha Williams

Applicant

and

Mandara Spa (Bahamas) Limited

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1265/08

INDUSTRIAL TRIBUNAL

New Providence

APPEARANCES:

Mr. Obie Ferguson Counsel for the Applicant

Mrs. Deborah Stubbs-Dean Spa Manager for the Respondent

DECISION

1 This matter came on for hearing on March 28 ^th, 2011. The Applicant's claim is for wrongful dismissal for which she is seeking compensation. The only witness for the Applicant is the Applicant herself.

EVIDENCE OF THE APPLICANT:

2 The Applicant's evidence is that at the time of her termination she was employed with the Respondent, which she referred to as Ocean Club Mandara Spa as a Massage Therapist. She was employed there for some six and a half (6 ¹/₂) years. She says she is no longer employed there because she was accused of stealing by the Manager at Ocean Club. She is accused of stealing a piece of cake.

3 The Applicant went on to relay what transpired. She says she had just finished a massage treatment and she decided to go in the cafeteria. What she says is usually when they are busy the supervisor or manager would go in the cafeteria to get them something to eat. She did not go into the cafeteria for lunch and decided to go and get a piece of cake out of the cafeteria. It was about five minutes to five and the cafeteria was not open yet.

4 She went through the kitchen door and she saw a lady by the name of Rochelle who usually serves the food and the Applicant asked Rochelle if she could have a piece of cake. She says that Rochelle gave her permission to get the cake. The Applicant then left to go to the prep room where staff would sit until the next service.

5 As she was going along with Lashelle, another therapist, the security guard saw them and said to them; “hey, hey” and they did not stop. The security guard followed them into the prep room. He came in and saw the cake on the counter. The security took out his phone and took a picture of the cake and then asked the Applicant her name. The Applicant refused to give him her name. He then went for his supervisor.

6 When the supervisor came the security guard told him that the Applicant had taken the cake out of the cafeteria. The supervisor asked the security if he saw the Applicant move the cake. The Applicant says she butted in and said “no” he didn't see her move the cake. So the supervisor told the security to first write it up and that was it. It is the Applicant's evidence that she didn't have lunch that day. According to the Applicant they are allowed one meal per day. This meal would usually consist of either salad, meat, cake and something to drink. The Applicant at the time of giving evidence was of the opinion that the Spa paid for the meals.

7 The Applicant went on to explain that her salary arrangement was that she got 13% gratuity, a service charge of $10.00 per service and a dollar $1.00 per year raise. She says she was terminated by one Pia Rolle who at the time was the manager at the Spa. When terminated the Applicant says she was given her salary and vacation. At this point, the Applicant was shown her final salary statement at Tab 3 of the Applicant's brief, which she identified as such and further testified that she only received the $2,226.22 and nothing more. This document was entered into evidence as Exhibit “K.W. 2”.

8 The Applicant was then directed to Tab 2 of the Applicant's brief, the Applicant's witness statement. The Applicant identified the document as her statement and identified her signature thereon. This document was entered into evidence as Exhibit “K.W. 1”. The Applicant confirmed signing a contract with her employer and receiving a copy. She also confirmed receiving a handbook for which she signed. When shown a copy of the handbook, the Applicant confirmed it to be the same. She was then directed to section 2.9 and was asked to read it which she did. The Applicant says that from her knowledge, she could not recall any signs in or near the area where the cafeteria was located and if there were in fact notices, they would be put in the prep room where they hang until their next service. However, the Applicant says if in fact there was a sign which said “you are not to take food from the cafeteria”, it would have been placed down by the cafeteria. According to the Applicant she has never seen any such sign by the cafeteria.

9 Under cross-examination the representative for the Respondent asked the Applicant if she knew who Rochelle was. The Applicant responded by saying that Rochelle was the person who served the food. When asked if it was customary for the manager or supervisor to get food for the staff, the Applicant responded by saying that they would normally do that when staff was busy. When this does not happen, staff is given vouchers. They would go into the cafeteria with the vouchers whenever they had them and get the meal. The Applicant said that she was not aware of any signs posted when entering the cafeteria.

10 The Applicant further testified under cross-examination that she couldn't really say what her take home pay was because it varied. She did however, confirmed that she received 13% gratuity, $10.00 per service and $1.00 per year. The representative for the Respondent then referred the Applicant to her contract of employment. The Applicant confirmed her signature on the contract of employment. She also confirmed that she agreed to everything in the contract of employment.

11 The Respondent's representative referred the Applicant back to Section 2.9 of the employee handbook and asked the Applicant if she was wearing her name tag on the day of the incident and she replied “yes mam”. When asked if she showed the security officer her tag when he stopped her she said; “no mam”. When further pressed as to why, she said she just didn't show it to him and because she had moved the cake out of the kitchen. She didn't want the security officer to see her name.

12 Under further cross-examination, the Applicant confirmed that she participated in the orientation at Mandara Spa when she was hired. She also confirmed that she received a copy of the handbook and was taken through certain policies and procedures. When asked if one of the policies was about the removal of company documents or materials the Applicant said “yes”. The Applicant also confirmed that she was given a clear plastic bag to put her belongings in when she arrived at work, which is used as a purse so that the security officer doesn't have to search as it allows them to see straight through. The representative for the Respondent asked the Applicant if she was spoken to on June 6 ^th, 2008 by Pia Rolle, wherein she had admitted removing the cake from the cafeteria. The Applicant responded by saying; “well she asked me if I moved the cake and I told her aint no one saw me move the cake. I got permission for the cake.”

13 The representative for the Respondent asked the Applicant if it was a known policy that no one takes anything out of the cafeteria, however, you can eat all you want. The Applicant answered “yes”. When asked; “so you were aware that food is not to be taken out of the café?” the Applicant answered “yes”. According to the Applicant, she didn't tell the Spa Manager about the incident because she didn't think it was a big deal. She repeated this when she was asked about the security calling the manager. The Applicant also says that she didn't give the security a hard time. She just didn't give him her name. Upon re-examination the Applicant's attorney asked her if she had ever seen anyone from Mandara Spa eating in an area other than the café and she said “yes”. She says she also observed a supervisor and manager taking food from the café to an area other than the café. The Applicant further testified that when they ran out of vouchers, she was still able to get food from the café.

EVIDENCE OF CORDELL BAIN:

14 Mr. Bain, at the time of giving evidence worked at Atlantis in the security department attached to the investigations and intelligence unit. Mr. Bain says that on June 04 ^th, 2008 at the time of the incident with the Applicant, he was the security on duty. His evidence is that around 5:00 p.m. he was scheduled to work the 11:00 – 7:00 p.m. shift at the café at the Ocean Club. Sometime around 5:00 p.m. on the reopening of the café, he was dispatched to be in position when the café opened. While standing in the hallway of the café, he says he observed two employees from Mandara Spa exiting the kitchen area of the café. The two female employees at the time who were not known to him were taking out two (2) small sanitary bowls covered with napkins.

15 As a result of his observations, he approached the ladies and asked them what it was they were taking from the café. As he was attempting to speak to them both of them continued walking. The lady, who he eventually came to know as Ms. Williams, said to him that she was in a rush and he would have to talk to her when she got where she was going. As she continued to walk, he said to himself; “maybe she didn't realize that he was a security” and so he identified himself. However, they continued to walk. He walked behind both ladies and observed them go into an office attached to Mandara Spa. Once on the inside, Ms. Williams continued to hide her name tag so he was unable to get her name. The security then asked the other female, whose name was Ruth for the manager. Ruth told him that the manager wasn't in but she would speak to the ladies but if he would give them a break.

16 While the security was having this conversation with Ruth, Ms. Williams took the napkin off the plate and started to eat the cake. He was able to see a piece of cheese cake and a piece of chocolate cake in both plates. Ms. Williams ate hers in front of him. While still oil the inside he contacted the security supervisor responsible for the area...