Peter Labon Miller v Bahamas Development Bank

• Jurisdiction: Bahamas
• Judgment Date: 20 June 2006
• Docket Number: No.882 of 2005
• Court: Industrial Court (Bahamas)

In the matter of the Industrial Relations Act

And

In the matter of The Employment Act, 2001

Peter Labon Miller

Applicant

and

Bahamas Development Bank

Respondent

No.882 of 2005

INDUSTRIAL TRIBUNAL

NASSAU

Counsel for the Applicant — Elliot Lockhart Esq. (with him Ms. Gia Moxey)

Counsel for the Respondent — Clinton O. Clarke Esq.

DECISION AND REASONS

The Facts:

1 The Applicant commenced employment with the Respondent in January of 1999 in the capacity of Collections Officer.

2 He was summarily dismissed by the Respondent by letter dated January 28, 2005, as follows:

“Mr. Peter

Miller Senior Manager — Credit

c/o Bahamas Development Bank

Nassau Bahamas

Dear Mr. Miller:

Re: Bahamas Fist (sic) Cheque Number 11007036

Dated October 6th, 2004 Payable to Sunshine Seafoods Co.r Ltd. “The Company” and The Bahamas Development Bank

I refer to the incident involving the above subject matter wherein the subject cheque in the sum of $45,000, the proceeds of hurricane damage to the company's building situated in the BAIC Industrial Park on Gladstone Road, was delivered to The Bahamas Development Bank and subsequently without authority returned by you to Mr. Lewis Cartwright of Sunshine Seafoods Company Ltd., who proceeded to deposit it to his personal business account.

The Board considered the matter after hearing your explanation when you appeared before it on Thursday evening, January 27, 2005 and arrived at a final conclusion after further consultation.

I regret to inform you that the Board has decided having regard to all the circumstances that your services should be terminated with immediate effect, and accordingly your service with the Bank is hereby terminated.

We wish you every success in your future endeavors.

Yours truly,

George E. Rodgers

Managing Director”

3 The Applicant alleges that he was wrongfully dismissed by the Respondent and claims damages for wrongful dismissal or reinstatement of his employment.

4 The Respondent avers that it did not wrongfully dismiss the Applicant and alleges that the Applicant was summarily dismissed for just cause inasmuch as the Applicant had committed a fundamental breach of his contract of employment, and had acted in breach of trust and in breach of his fiduciary duty towards the Respondent.

5 The Respondent further alleges that the Applicant had committed gross misconduct and was guilty of possible collusion.

6 In the circumstances the Respondent avers that the Applicant is not entitled to damages for wrongful dismissal or any damages at all, and neither is he entitled to be reinstated in his employment.

The Evidence:

7 The Applicant testified that at all material times he was employed by the Respondent in the capacity of Senior Assistant Manager.

8 He said that he appeared before the Board of Directors of the Respondent on January 27, 2005, and presented a credit project to the Board.

9 After he presented the project he went home. He said that later that evening he received a telephone call from the Manager of Human Resources requesting that he report back to the office.

10 He testified that upon his return, he was invited to appear before the Board again, at which time he was questioned concerning an insurance claim cheque payable to the Respondent and Sunshine Seafoods Company Ltd. He said that Lewis Cartwright is the President of Sunshine Seafoods Company Ltd.

11 The Board queried why he allowed Mr. Cartwright to retrieve the cheque.

12 He said that when Mr. Cartwright brought in the cheque, he expressed serious concerns about the condition of the seafood plant which was damaged during the hurricane.

13 The Applicant testified that apart from the issue of damage to the plant, he was dealing with other matters concerning Mr. Cartwright's company, and therefore requested him to return the following Monday morning with additional information together with the cheque. (Mr. Cartwright's initial visit was on a Friday).

14 He said that he appeared before the Board of Directors of the Respondent on January 27, 2005, and presented a credit project to the Board.

15 After he presented the project he went home. He said that later that evening he received a telephone call from the Manager of Human Resources requesting that he report back to the office.

16 He testified that upon his return, he was invited to appear before the Board again, at which time he was questioned concerning an insurance claim cheque payable to the. Respondent and Sunshine Seafoods Company Ltd. He said that Lewis Cartwright is the President of Sunshine Seafoods Company Ltd.

17 The Board queried why he allowed Mr. Cartwright to retrieve the cheque.

18 He said that when Mr. Cartwright brought in the cheque, he expressed serious concerns about the condition of the seafood plant which was damaged during the hurricane.

19 The Applicant testified that apart from the issue of damage to the plant, he was dealing with other matters concerning Mr. Cartwright's company, and therefore requested him to return the following Monday morning with additional information together with the cheque. (Mr. Cartwright's initial visit was on a Friday).

20 He said that Mr. Cartwright did not return, but he was not concerned about returning the cheque to him inasmuch as it had not been endorsed on the reverse side by the bank, and therefore from a banking perspective could not be negotiated. He said that in the circumstances he was satisfied that he did not expose the Respondent to any potential liability or loss.

21 The Applicant testified that he later discovered that the cheque was negotiated by Mr. Cartwright at First Caribbean Bank (Bay Street branch). He said that he immediately telephoned Mr. Cartwright voicing strong objections, and he confirmed his conversation in writing to him.

22 He said that he also telephoned the Manager of First Caribbean Bank voicing like objections. The Manager was also of the view that the cheque should not have been negotiated, and confirmed that the Respondent would be fully compensated.

23 He said that he confirmed his telephone conversation with the Manager of First Caribbean Bank in writing, and formally requested reimbursement; but up to the time of his dismissal, the money was not reimbursed.

24 The Applicant testified that he wrote a memorandum dated January 5, 2005, to the Managing Director of the Respondent concerning the matter as follows:

“SUBJECT: Cheque $45,000 — Sunshine Seafoods Co. Ltd. Bahamas Development Bank

The cheque at caption represents a claim submitted by Sunshine Seafoods as a result of damage sustained by their seafood plant (Fire Trail Road) during a hurricane in September of this year. The claim was settled in a cheque payable to both the bank and Sunshine Seafoods Company Ltd.

The cheque is dated October 6, 2004 and was presented to the writer sometime later by Mr. Lewis Cartwright, President, Sunshine Seafoods. During the presentation, discussions centred around a request for additional funds — to complete the plant and utilization of the cheque to assist with completion. As a result of these discussions, the matter was referred to Mr. Jerome Ferguson, Manager, Credit Dept. and, on this occasion several options to complete the plant were discussed. The conclusion was that the bank would not endorse the cheque and same should be deposited to the client's account to be considered as part of the proposal for completing the plant.

After the meeting with Mr. Ferguson, I returned to my office and informed Mr. Cartwright that the bank was not prepared to endorse the cheque — at that time. He then indicated he would contact us the following week but returned later and requested the cheque which was given to him without being endorsed (see attached copy).

As a result of the request for additional funds, the Chairman and Deputy Chairman along with the writer and Ms. Steine Campbell visited Sunshine Seafoods on December 9, 2004. It was during this site visit Mr. Cartwright indicated the cheque had been negotiated and, when further inquiries were made by the Deputy Chairman, it was revealed by Mr. Cartwright that funds were used to effect repairs to the plant. The matter was further investigated by Ms. Steine Campbell who contacted First Caribbean Bank who confirmed the cheque was deposited into an account in the name of L & A Seafoods (Lewis & Algier Cartwright).

We have written to Mr. Cartwright expressing our disappointment over the manner in which this cheque was negotiated without the consent of the bank. Additionally, we wrote a letter to First Caribbean Bank expressing our concern over the apparent breach of normal banking procedures.”

25 The Applicant said that he received a reply from the Managing Director of the Respondent on even date as follows:

“Mr. Peter Miller

Assistant Manager – Credit

c/o Bahamas Development Bank

Nassau, Bahamas

Dear Mr. Miller:

Re: Bahamas First Cheque Number H 007036 Dated

October 6, 2004 Payable to Sunshine Seafoods Co., Ltd.

And The Bahamas Development Bank

This will acknowledge receipt of your memorandum dated January 5, 2005 with the enclosures, the contents of which are noted.

Our records would indicate that this bank was already displeased about the operations of the account of Sunshine Seafoods Company Ltd. and indeed your memorandum confirmed that this relationship was presently under scrutiny. Add to this your years of experience as a commercial banker and there is no excuse that can mitigate against your actions in returning the captioned cheque to the customer.

The logical and proper course of action was to retain the cheque and endorse it on behalf of the client and the bank for credit to their account with us.

This is a very serious matter which causes us to question your judgment as a member of the management team. Consequently, I am obliged to issue this formal warning that if you continue to act in a...