Nicko Marcellias Leopold Moss v Purity Bakery Ltd

• Jurisdiction: Bahamas
• Judge: Harrison L. Lockhart
• Judgment Date: 29 October 2014
• Docket Number: No.1448 of 2010
• Court: Industrial Court (Bahamas)

In the matter of the Industrial Relations Act Chapter 321

And

In the matter of the Employment Act Chapter 321A

Nicko Marcellias Leopold Moss

Applicant

and

Purity Bakery Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.1448 of 2010

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Troy Kellman Esq.

Representative for the Respondent — Mr. Franklin Carter.

DECISION AND REASONS

The Facts:

1 The Applicant commenced employment in November of 2000 and was at all material times employed in the capacity of a supervisor at a salary of $780.00 per week.

2 He alleges that he was wrongfully dismissed by the Respondent on October 19, 2009, and claims damages for wrongful dismissal.

3 The Respondent alleges that the Applicant commenced employment on November 27, 2000, and admits that he was summarily dismissed on October 19, 2009; but avers that he was dismissed for just cause inter alia because “at a disciplinary meeting on October 14, 2009 he was very disrespectful, loud, boisterous, threatening and insubordinate to the General Manager [of the Respondent].” In other words the Respondent avers that the Applicant was summarily dismissed for gross insubordination and gross misconduct.

4 The Applicant's employment was terminated by letter dated October 19, 2009 as follows:

“Nicko Moss

Nassau Bahamas

Dear Mr. Moss:

You are hereby summarily dismissed with immediate effect for the following reasons:

• 1) You are in fundamental breach of your contract of employment; gross insubordination — section 32 (d) and gross misconduct — section 32 (i) of the Employment Act 2001.

• 2) Your failure to comply with directives issued to all supervisors on September 14, 2009, September 21, 2009 September 22, 2009 and the October 8, 2009.

• 3) You were given a letter of suspension dated October 13, 2009; and in our subsequent meeting on Wednesday October 14, 2009, your behaviour was loud, boisterous, threatening and very disrespectful so much so that my office staff was concerned for my physical well being.

• 4) You emphatically stated that I might as well fire you, since you do not respect me as the contents of the letter was foolishness.

Yours sincerely,

Mr. Leslie J. Knowles

General Manager”

The Evidence:

5 The Applicant testified that he was fired by the Respondent because he took two days off from work because his father was ill.

6 He said that he called in to the Respondent on the particular Friday and left a message with the General Manager's secretary to that effect.

7 On the following Monday he received a letter of suspension from the General Manager, Mr. Leslie Knowles as follows:

“October 13, 2009

Nicko Moss

Supervisor West

Nassau Bahamas

Dear Mr. Moss:

You are hereby suspended for the period Tuesday October 13 ^th to Saturday October 17 ^th without pay for the following reasons:

• 1) Your blatant disregard in complying with my request for the timely copies of your area's route books.

• 2) Your failure to advise me or any of your fellow supervisors of your absence on Friday October 9th and Saturday October 10th 2009. (W/E before a holiday)

• 3) Your refusal to return my call in spite of my message advising you of the urgency to hear from you.

The company is faced with the unfavorable situation of declining units, and so it is critical that all staff perform the job that is required of them. Needless to say, I am disappointed I have to take this action, but I must ensure that steps are taken to preserve the company's survival in these severe prevailing economic conditions.

Yours sincerely,

Mr. Leslie J. Knowles

General Manager”

8 The Applicant testified that contrary to the allegation of the Respondent, he did submit his route books pursuant to instructions, and he denied being loud and boisterous and threatening as alleged.

9 He admitted that he might have elevated his voice during discussions with the General Manager but said that the General Manager also spoke loudly to him.

10 The Applicant testified that in general he had a good working relationship with the General Manager, but on the occasion of his suspension he felt as though he was “being picked on.”

11 He said that prior thereto he had never been reprimanded by the Respondent; in fact, he said that he had received good oral commendations from the General Manager during the course of his employment.

12 Mr. Leslie J. Knowles testified that he is the General Manager of the Respondent and had been General Manager during the tenure of the Applicant's employment.

13 He said that the Applicant commenced employment as a salesman/jumper. A jumper is a substitute driver.

14 He promoted the Applicant to the position of Supervisor.

15 Mr. Knowles testified that he had occasion and reason to issue a number of memoranda to the Respondent's supervisors owing to the fact that certain procedures were not being followed by them. The memoranda in chronological sequence were as follows:

“TO: Ashton Pratt, Nicko Moss, Craig Adderley, and Jeffrey Burrows

FROM: Mr. Leslie Knowles

CC: William Holland

DATE: September 14, 2009

SUBJECT: Various

There has been a decline in all major products namely: Special Blend 20oz, Roman Meal and Golden Wheat over the last three months. To help correct this slide the following is to be put into immediate effect:

• 1) I require from each of you on a daily basis a report on the stores and customers visited. The daily customer's listing is to be used.

• 2) Effective this Saturday, on a rotational basis agreed by yourselves, a supervisor must be in the sales area until the last driver comes in. The supervisor must have on my desk by Monday morning a report relating to Saturday in terms of driver's shortage of products for their routes etc.

• 3) Every Tuesday morning, copies of route books for the three divisions must be in Mr. Holland's tray and on my desk.

• 4) As mentioned before, we require the drivers to be here at 5:00am but, there have been occasions when no supervisor is here to ensure that the drivers carry out their correct load. Please ensure that one of you is always here to supervise the drivers when they arrive. In addition, I need to know which drivers are leaving late for the market.

• 5) As a team, you are required to provide a monthly sales report as a part of the report forwarded to head office. I am available if you need any assistance.

These are very challenging times, and if we are to maintain our position in the market, we must change the way we operate. Unfortunately, whoever is not able to comply will be left behind.

Upon receipt of this memo, I wish to meet with all of you on Monday September 14th at 4:00pm.”

“TO: Ashton Pratt, Nicko Moss, Craig Adderley, and Jeffrey Burrows

FROM: Mr. Leslie Rnowles

CC: William Holland, Darnell Rolle

DATE: September 22, 2009

SUBJECT: Follow-up Procedures

Further to our meeting, this letter is to express my displeasure with you not providing the reports on my desk as requested.

The Sales Department of this company leaves “much to be desired”. If any of you do not buy into what the company is trying to achieve, please do the honorable thing.

Please provide me in writing the reasons why my requests have not been met by this afternoon. Failure to do so would result in you not been allowed on the company's premises until you receive my permission.

This company will change its mode of operations to survive, and either you get with the program or you will be asked to move on.

I hope this will be the final time I have to address you on this matter.”

“To: Ashton Pratt, Nicko Moss, Craig Adderley & Jeffrey Burrows

cc: William J. Holland

Mrs. Darnell Higgs-Rolle

From: LESLIE J. KNOWLES — GENERAL MANAGER

Date: September 29, 2009

Subject: ROUTE BOOKS

Thank you for the copies of route books and your daily reports. On my evaluation, I noticed...