Lorraine Moncur v Migrafill Security

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 27 January 2011
• Docket Number: IT/NES/1305/09

Between:

Lorraine Moncur

Applicant

and

Migrafill Security

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1305/09

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Applicant in person

No appearance by or on behalf of the Respondent

DECISION

1 The Applicant in this matter is claiming to have been wrongfully dismissed by the Respondent. The Respondent entered a Notice of Appearance dated July 21 ^st, 2009 which was received by the Tribunal on August 31 ^st, 2009. The Secretary to the Tribunal received a letter from the President of the Respondent, Grafton Ifill Sr. Q.P.M. We set out the letter in full below:

“MIGRAFILL

SECURITY INTERNATIONAL LTD.

July 21, 2009

Secretary of the Industrial Tribunal

The Office of the Industrial Tribunal

Monument Building

Thompson Boulevard

Nassau, Bahamas

To Whom It May Concern:

Dear Sir/Madam:

Re: Loraine Moncur (Applicant) v. Migrafill Security (Respondent)

We refer to your communication IT/NES/1305 of 2009.

Please be informed that I have again spoken to Mr. Collin Cleare, the Security Manager at Migrafill, who informed me — as he had done nearly two (2) years ago — that both Ms. Moncur and Mr. Cleare met before an executive of the Industrial Relations Department and this matter was thoroughly examined; and it was determined that Migrafill was not in any way at fault.

A representative from Migrafill is willing to meet again with all persons concerned to review this complaint.

Yours sincerely,

MIGRAFILL SECURITY INTERNATIONAL LIMITED

(Signature)

Grafton O. Ifill, Sr. QPM

President

Attachment: Form D”

2 Firstly, the letter makes reference to communications from the Secretary of the Tribunal and in a nutshell says that as far as he was concerned Migrafill, the Respondent in this matter was deemed not to be in any way at fault by the Industrial Relations Department. This is somewhat baffling to this Tribunal in that if this was the case why was the matter referred? Further more, let me state very clearly that the Department of Labour does not determine matters which come before it for conciliation. That is the reason why the Act allows for referrals to the Industrial Tribunal for determination as to the legal position of both parties. In fact, the Tribunal will not accept as appropriate the above letter in that the Respondent is clearly usurping the authority of the Tribunal by stating; “a representative from Migrafill is willing to meet again with all persons concerned to review the complaint.” This should be the very last time that communications such as this should be forwarded to this Tribunal by any parties who are to appear. This is not to say that the Tribunal would be adverse to facilitating the resolution of a dispute.

3 This leads us to conclude that the Respondent, having taken the position that it was in no way at fault, decided not to appear before this Tribunal. This Tribunal does not take kindly to parties disregarding or ignoring its notices.

4 Section 59 (1) (a) of the Industrial Relations Act Chapter 321 says;

“59 (1) In addition to the powers conferred on it, under the foregoing provisions of this Act the Tribunal may —

a) proceed to hear and determine any question arising in connection with a dispute in the absence of any party who has been duly summoned to appear before the Tribunal and has failed to do so;

4 Therefore, pursuant to the above section the Tribunal heard the evidence of the Applicant Lorraine Moncur.

EVIDENCE OF LORRAINE MONCUR:

5 Ms. Moncur commenced employment with the Respondent on May 17 ^th, 2005 and was terminated on May 22 ^nd 2007. The Applicant says that she signed a contract but couldn't produce a copy of it as she probably had misplaced it. The Applicant appears therefore to have been employed for some two (2) years and five (5) days with the Respondent.

6 According to the Applicant, her base salary was $200.00 per week but when she worked overtime, she made an extra $50.00. What she says is when she worked from 7:00 p.m. to 7:00 a.m. was when she made the extra $50.00. The Tribunal takes special note of the fact that from 7:00 p.m. to 7:00 a.m. is a total of some twelve (12) hours. The Applicant says that sometimes when she pulled triple overtime, she received the $300.00 and she remembers receiving $400.00 on one occasion.

7 The Applicant went on to explain why she believes she was terminated. Her evidence is that she was stationed at Xavier's Lower School. Every lunch time or break time when she would feel the need for something to eat, the janitresses and the people at the school would tell her that they don't cater to security officers because they were supposed to have their lunch hour. The Applicant says that she went to Ms. Lewis, the Principal who told her that she was entitled to an hour for lunch. The Applicant then asked Mrs. Lewis, to go to the bank for about forty-five minutes. Mrs. Lewis gave the Applicant permission to leave but only after all of the students were in the classrooms.

8 The Applicant waited until all the children were in the classrooms and then she left to go to the bank. She caught the Cable Beach bus and went to Royal Bank downtown. When she returned to Xavier's she was told that her supervisor was looking for her and was walking around the campus,. She then called her office and they asked her where was she when the supervisor was there looking for her. The Applicant explained that she had asked Mrs. Lewis to go to the bank for forty-five minutes to get some money to get something to eat and Mrs. Lewis had given her permission. She was told by her office that she shouldn't leave the premises. The Applicant responded by telling them that she was entitled to a lunch hour. One Ms. Edgecombe from the Respondent's office then told the Applicant that she was not supposed to leave the premises.

9 The Applicant was then asked to report to the Respondent's office on Tuesday morning. When the Applicant arrived at the office she was told that she was fired. She was not paid anything. She did say however, that they were trying to give her a cheque for $15.00 but she refused to accept it. She would have gone to the bank on a Monday. She would have worked the entire week before. It is the further evidence of the Applicant that she worked on the Monday and the Tuesday when she was fired. What the Applicant says happened was that the office called her and asked her to come to the office after her shift on the Tuesday. The Applicant also worked on the Saturday of the...