Nicholas Simmons v Johnson Brothers Ltd
| Jurisdiction | Bahamas |
| Judge | Charles J |
| Judgment Date | 18 January 2022 |
| Year | 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2018/CLE/gen/01417 |
(d/b/a Little Switzerland)
The Honourable Madam Justice Indra H. Charles
2018/CLE/gen/01417
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Employment Contract — Dismissal — Wrongful dismissal — Unfair dismissal — Employee summarily dismissed — Employer alleging gross negligence — Whether employee given a reasonable opportunity to respond to the allegations — Whether employer entitled to summarily dismiss employee for cause cited — Ss. 431, 32, 33 Employment Act, Ch 321
The Plaintiff was the Manager of the Defendant's jewelry store. He was summarily dismissed by the Defendant for stealing. He filed a Generally Indorsed Writ of Summons on 5 December 2018 wherein he claimed against the Defendant damages for wrongful and unfair dismissal and breach of contract. The Plaintiff claimed damages of $30,937.50 for unfair dismissal, damages of $37,500 for wrongful dismissal; special damages of $37,000 for retaining counsel to represent him in his criminal trial at the Magistrate Court; compensatory damages of $90,000 in accordance with section 47 of the Employment Act as well as general damages, interest and costs.
The Plaintiff asserted that the summary dismissal was wrongful because the Defendant's belief that he was guilty of stealing was not reasonably held and the Defendant failed to conduct a proper investigation to justify its determination that the Plaintiff was guilty of stealing. Further, the Plaintiff alleged that the dismissal amounted to unfair dismissal under the Employment Act, having regard to the Defendant's failure to conduct a proper investigation into the alleged missing items.
The Defendant denied not having conducted a reasonable investigation. It asserted that, in addition to conducting an investigation, documentary evidence supported the determination that the Plaintiff was guilty of stealing. On that basis, the Defendant says that its belief was an honest one and reasonably held. Accordingly, the summary dismissal was lawful.
HELD: finding that the investigation was fair and reasonable and the Defendant's belief that the Plaintiff was guilty of the alleged misconduct was honest and reasonably held, the dismissal was not wrongful or unfair. The action is therefore dismissed with no order as to costs.
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1. The employer's duty to act fairly in dismissing the employee dictates that natural justice principles be adhered to. The employee must be given an opportunity to explain or respond to any charge or adverse decision to be taken against him. The right to be heard does not require a full-blown hearing per se, but can be satisfied by giving the employee an opportunity to make representation (whether in writing or in person) before the decision is made: Bahamasair Holdings Limited v Omar Ferguson SCCivApp No. 16 of 2016 applied.
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2. The appropriate test for determining whether there has been “just cause” for summary dismissal is whether, on a balance of probabilities, the employer reasonably believed so. The employer does not have to prove commission of the offence: Wesley Percentie v Cost Rite Wholesale Club [2004] BHS J No 6 and Princess Hotel v Bahamas Hotel Catering and Allied Workers Union [1985] BHS J No 128 applied.
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3. In determining the reasonableness of the employer's belief, the gravity of the allegation is a consideration to which the employer in entitled to have regard: Princess Hotel v Bahamas Hotel Catering and Allied Workers Union [1985] BHS J No 128 considered.
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4. Taken together, all of the facts form a reasonable basis for the Defendant's belief, at the time of termination, that the Plaintiff was guilty of theft. Had the various facts been isolated, it is unlikely that there would have been reasonable belief of guilt. The investigation was proper and fair. It follows that the Plaintiff's summary dismissal was lawful and it was not unfair.
Mrs. Erica D. Munroe of E.D.M. Law Group for the Plaintiff
Mr. Keith O. Major Jr. of Higgs & Johnson for the Defendant
By Generally Indorsed Writ of Summons filed on 5 December 2018 and Statement of Claim filed on 26 February 2019, the Plaintiff (“Mr. Simmons”) claims against the Defendant, Johnson Brothers Ltd. d/b/a Little Switzerland (“the Company”) damages for both wrongful and unfair dismissal and breach of contract. The allegation was that, on 22 November 2014, Mr. Simmons was accused of theft and suspended indefinitely and, on 2 January 2015, his termination was confirmed. Mr. Simmons claims special damages in the sum of $195,437.50, $37,500 representing one month's basic pay in lieu of notice and one month's basic pay for each year he was employed by the Company for wrongful dismissal, $30,937.50 for unfair dismissal, $90,000 as compensatory damages under the Employment Act (“EA”) for unfair dismissal and $37,000 as consequential loss for representation in the criminal matter brought against him which arose from the Defendant's allegations. Mr. Simmons also claims general damages.
Mr. Simmons commenced employment with the Company in 2005. He was promoted to Store Manager of the Breitling Boutique in 2006 and earned a biweekly salary of $1,875.00.
The Company was, at all material times, a jewelry store owned by Johnson Brothers Limited.
In August 2013, the Company hired an Assistant Manager, Krizia Bethel, to work alongside Mr. Simmons. He trained her for some time.
On 1 October 2014, the Company offered Mr. Simmons a new position as Store Manager of a new store, Omega Boutique. On 6 October 2014, Tom Ballas, Vice-President of Operations, sent an email to “Everyone” advising them of the new changes in management. The email selectively reads:
“Good morning…
Please be advised that the management changes as it relates to the Nassau market. These changes were effective on Oct 1, 2014.
7501, Breitling Boutique Nassau… Please join me in congratulating Krizia Bethel, who will be the new Store Manager.
TBD, Omega Boutique… Please join me in congratulating Nic Simmons, who will be the Store Manager of the new Nassau Omega Boutique that is scheduled to open before season.”
Mr. Simmons was present at the Company store and the Breitling Boutique on 16 November 2014, the day before one of the two yearly inventory audits was held by the Company.
The inventory audit was held on 17 November 2014. Mr. Simmons was not present. On that morning, he flew to another island for vacation which he says was approved by the Company.
The audit revealed missing items from tray 36 of the Breitling Boutique. Mr. Howard called Mr. Simmons and asked him where he was and where the items in tray 36 were. Mr. Simmons told him that the watches were being repaired in Switzerland.
There are two (2) section tray transfer documents showing twelve (12) identical electronic transfers to tray 36. One document bears Ms. Bethel's name and employee ID number and the other document bears that of Mr. Simmons.
On 22 November 2014, a meeting was held by Mr. Howard and the Vice President of Human Resources (“HR”), Mr. Mike Cooney. During the meeting, Mr. Simmons was questioned about missing watches from tray 36. Mr. Simmons told them that the watches should be in the tray which was located in the safe and that he had completed the turnover process of the store to Ms. Bethel. At the meeting, Mr. Howard and Mr. Cooney accused Mr. Simmons of theft.
Mr. Howard invited Mr. Simmons to submit a written statement representative of his position/defence to the allegations. Mr. Simmons was advised that he was suspended until the completion of the investigation.
By letter dated 24 November 2014, Mr. Simmons wrote Mr. Howard requesting a written letter confirming his termination. He stated that he would be prepared to provide a written statement only upon the receipt of same.
The parties dispute whether Mr. Simmons was terminated by letter. Mr. Simmons alleged that he never received a termination letter.
Mr. Simmons was charged with stealing by reason of employment, tried before a Magistrate and was found not guilty.
Section 31 of the Employment Act, Ch 321 (the EA”) provides for the employer to summarily dismiss the employee without pay or notice in circumstances where the employee has committed a fundamental breach of his employment contract or has acted in a manner offensive to the fundamental interests of the employer. The section expressly states:
“31. An employer may summarily dismiss an employee without pay or notice when the employee has committed a fundamental breach of his contract of employment or has acted in a manner repugnant to the fundamental interests of the employer:
Provided that such employee shall be entitled to receive previously earned pay.”
Section 32 provides a non-exhaustive list of examples of fundamental breaches of the employment contract and/or behaviour offensive to the employer's fundamental interests that are permissible grounds for summary dismissal. It provides:
“32. Subject to provisions in the relevant contract of employment, misconduct which may constitute a fundamental breach of a contract of employment or may be repugnant to the fundamental interests of the employer shall include (but shall not be limited to) the following –
(a) theft;
(b) fraudulent offences;
(c) dishonesty;
(d) gross insubordination or insolence;
(e) gross indecency;
(f) breach of confidentiality, provided that this ground shall not include a report made to a law enforcement agency or to a government regulatory department or agency;
(g) gross negligence;
(h) incompetence;
(i) gross misconduct.”
To prove that the summary dismissal was lawful, the employer must prove that he honestly and reasonably believe on a balance of probability that the...
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