Lynn Armbrister v Bahamas Supermarkets Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 29 July 2011
• Docket Number: IT/NES/1271/09

Between:

Lynn Armbrister

Applicant

and

Bahamas Supermarkets Limited

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1271/09

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Dwayne Gibson Esq. Counsel for the Applicant

No appearance by or on behalf of the Respondent

DECISION

1 This matter was set down for hearing on the 20 ^th and 21 ^st of April, 2011. At the hearing, there was no appearance on behalf of the Respondent, The Respondent was properly served with the Notice of Hearing (“Form J”) on the 23 ^rd March, 2011. It was signed for by one Ms. Kelleta Cartwright. There was no form of communication with the Secretary to the Tribunal advising of the non appearance of the Respondent—

2 Counsel for the Applicant made an application in limine pursuant to section 59 of the Industrial Relations Act Chapter 321 which reads as follows:-

S59 (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;

3 Having heard counsel on his application, the Tribunal acceded thereto and proceeded to hear the matter. The Respondent did not enter an appearance but entered a defence dated March 16 ^th, 2009 and received on the 17 ^th March, 2009. The defence was entered by Graham, Thompson & Co. on behalf of the Respondent.

EVIDENCE OF LYNN ARMBRISTER (The Applicant)

4 The evidence of the Applicant is that she was employed with the Respondent for fifteen (15) years. The first ten (10) of these years were spent as Assistant Produce Manager. She then moved to the deli as a Deli Clerk. She subsequently returned to the produce department. Subsequent to this, she was promoted to Back Door Receiving Manager at the Village Road Store.

5 At the time of her dismissal she was earning $300.00 per week. The Applicant related the sequence of events leading up to her termination. She says it was on a Thursday in October, 2008 when she was given permission from the Store Manager Mr. Johnson on the previous Wednesday along with Sherene Rolle another Back Door Receiving Manager to clean up the back room (i.e. the damaged items).

6 On the Wednesday, Ms. Rolle started to mark down some of the damaged items. On the following day she was off and the Applicant continued the mark down of the damaged items. Included in the mark down items were burst bags of sugar and rice. There were employees around who would have seen the Applicant marking the items down. It is the further evidence of the Applicant that the assistant head cashier at the time, one Ms. Frazier wanted to purchase some of the items. The Applicant told her to first check with the assistant manager as he was the one on duty at the time. The items Ms. Frazier wanted were usually turned over to the deli. These were items like hand towels and tissue. Ms. Frazier came back to the Applicant and advised her that the assistant manager had given her permission.

7 The items which the Applicant had marked down were placed in a shopping cart at the back of the store, which the Applicant says was the usual practice. According to the Applicant, the items in the cart were marked down by both her and Sharene. At the time of this incident, the Applicant had only been at the Village Road Store for about two (2) months. It is her testimony that when she went there she met about four or five trolleys of damaged items and she along with the persons in her department were asked to clear it up.

8 On the day on which the items were purchased by the Applicant, and just before the end of her work day, which was just before 4:00 p.m. the Applicant went to the shopping cart and took out the items she wanted to purchase. The items have always been available to both the staff and the public. Additionally, Mr. Johnson, the Assistant Manager had some malt tonics and the Applicant purchased some of them as well.

9 The Applicant went on to explain the purchasing procedure for staff. What she says is that the cash register near the office door is where staff must cash items they wish to purchase. The manager or head cashier deals with staff purchases. On the day the Applicant purchased the items, that is where she went. Two copies of the receipt would be made, one for the staff member and the other for the head office. At the time the Applicant went to purchase the items, she had no problem because the manager was there and the head cashier rang up the items.

10 At this point counsel for the Applicant produced a receipt which was positively identified by the Applicant as the receipt she had received on the day in question when she had purchased the items. The receipt is set out below and was included in a bundle of documents provided by the Applicant.

11 The total amount shown as paid on the receipt is $11.59.

12 On the following day, when the Applicant reported for work; one Ms. Barbara Laing called her into the office and questioned her about the items she had purchased the day before. The Applicant confirmed for Ms. Laing the purchase by her of the items. Ms. Laing then asked the Applicant who had marked down the items and the Applicant told her that Mr. Johnson had authorized her and Sharene to mark the items down. Ms. Laing then asked one Christine Sands what had happened on the day in question as Christine had also purchased some of the items. Christine Sands also confirmed for Ms. Laing that the Applicant had marked down some of the items in addition to confirming also that the Applicant had permission from Mr. Johnson to purchase the items.

13 Prior to knocking off that day, one Mr. Rolle, the Supervisor for the Village Road Store told the Applicant to report to the head office on the following day. The Applicant reported to the head office and was suspended for two (2) days. When asked if she knew why she was suspended, the Applicant said that Mr. Goudie, the Human Resources Manager at the time told her that she had no right marking down items. The Applicant told him that Mr. Johnson the Assistant Manager had requested her to mark down the items. In any event, Mr. Goudie suspended her for two (2) days. It is the Applicant's evidence that in all of her time working for the Respondent, there was never a cause or reason for the Respondent to discipline her. After the suspension, the Applicant reported back to the head office and that's when she was given her letter of termination. The Applicant says that the contents of the letter basically said she was terminated for stealing which the Applicant denies.

14 In an effort to dispute the termination and the reason therefore, the Applicant met with the Respondent. At the first meeting it is the Applicant's belief that the decision had already been made to let her go. The Union president was present and he didn't even advise the Applicant as to what was going on. We cannot help but point out that the Applicant was a shop steward of the union. As a matter of fact, it is the evidence of the Applicant that by the time she arrived at the meeting a meeting had already taken place. They commenced the meeting before the scheduled time, despite the fact that they had requested the presence of the Applicant. The Applicant stated very empathically that she was not late for the meeting. She was told to be there for 10:00 a.m. and she arrived a little before 10:00 a.m.

15 The Applicant's further evidence is that she only received pay for the week she had worked and didn't receive any accrued vacation. She was paid only for the week she had worked and for the week when she first commenced employment with the Respondent. According to the Applicant, she was due two (2) weeks vacation.

16 It is the further evidence of the Applicant that during her time as Back Door Manager, she supervised approximately eight (8) persons. The Applicant explained that she would instruct these persons to for example collect the various brands they were responsible for and to take whatever was needed from time to time to stock the shelves and to place any remainder in the designated areas. If this was not done and all was not in order, the manager she says would hold her responsible. Additionally, she says that she would be responsible for all items being delivered at the back door during her shift.

17 The Applicant's further testimony is that all employees were well aware of the process of purchasing items whether discounted or not via the manager and head cashier. The Applicant's evidence is that she commenced employment with the Respondent in or about the month of July, 1993 and was employed with the Respondent for a period of some fifteen (15) years. The Applicant says that she was a part of the pension plan and for a period of about five (5) years prior to her termination, she never received any statements. The pension was contributed to 100% by the Respondent.

18 At this point in the hearing, counsel for the Applicant made an application in limine pursuant to section 7 (2), (a) of the Industrial Relations (Tribunal Procedure) Rules 2010, to have the president of the Applicant's previous union called as a witness in this matter. The Tribunal acceded to this application. The Applicant continued to give evidence and testified that she was claiming two (2) weeks vacation pay, notice pay and her pension.

19 When questioned about her efforts to find employment, the Applicant testified that it was only after about a year that she was able to find employment at Robin Hood. She says she had applied to several places like Cost Rite and Solomon's.

EVIDENCE OF ELGIN DOUGLAS:

20 Mr. Douglas was called to give evidence in his capacity as President of the Bahamas Commercial Stores Super Markets and Warehouse Workers Union. Mr. Douglas testified that he was familiar...