Pickstock v Bahamian Supermarkets Ltd
| Jurisdiction | Bahamas |
| Judge | Allen, J. |
| Judgment Date | 04 August 1998 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 1440 of 1994 |
| Date | 04 August 1998 |
Supreme Court
Allen, J.
No. 1440 of 1994
Mrs. Stephanie Wells for the plaintiff.
Mr. Bran McCartney for the defendant.
Dismissal law - Plaintiff claimed dismissal for no reason and failing to give any or adequate notice — Court found that the defendant liable for wrongful dismissal.
The plaintiff claims that he was employed by the defendant in the capacity of store manager and was, on the 4 th May, 1994, whilst employed in that capacity, wrongfully and / or unlawfully dismissed after being in the defendant's employ for a period of ten (10) years.
The particulars of wrongful and /or unlawful dismissal:
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A. Dismissing the plaintiff for no or no proper reason.
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B. Failing to give the plaintiff any or any adequate notice.
The plaintiff further claims that on the 13 th day of March, 1994, while in the employ of the defendant, he was attacked by robbers at the defendant's Market Street store and that the same was caused by the negligence of the defendants, it's servants and/or agents.
The particulars of negligence are
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A. Failing to provide a safe system of work.
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B. Failing to have any or any proper security at the defendant's premises.
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C. Failing to provide the plaintiff with any escorts at the Market Street Store.
The plaintiff claims that as a result of the wrongful dismissal and negligence of the defendants it's servants and/or agents the plaintiff sustained injuries and suffered loss and damage.
The defendant admits that the plaintiff was in it's employ, but denies that he was employed for ten (10) years. The defendant asserts that the plaintiff was in it's full-time continuous employ from 1987 until 1994.
The defendant admits that on the 4th May, 1994, it terminated the employment of the plaintiff, but denies that his dismissal was wrongful and /or unlawful. The defendant asserts that it was entitled to summarily dismiss the plaintiff for misconduct in habitually failing to discharge his duties as a store manager by:
- Failing to maintain proper sanitary conditions in stores under his management; 2. Failing to maintain proper levels of inventory of merchandise in stores under his management; 3. Failing to give proper attention to the management needs of the store by being present in the store as required.
Alternatively, the defendant claims that if it was not entitled to dismiss the defendant, that it paid the defendant $11,746.80, being the proper compensation for any damage suffered by him as a result of his dismissal.
The defendant admitted that the plaintiff was attacked by armed robbers while at work in it's store, but denies that it was caused and/ or occasioned by it's negligence or that of it's servants or agents. The defendant further asserts that it had no knowledge of the armed robber's presence at the store at the material time or at all and that it took all reasonable care to prevent damage from such danger.
The defendant denies that any injury, loss or damage which may have been suffered by the plaintiff was caused or occasioned by the defendant as alleged or at all and claims further or in the alternative that the injuries loss and damage suffered by the plaintiff (which is denied) was caused or contributed to by the negligence of the plaintiff by:
- Failing to voluntarily heed to his attackers demands; 2. Failing to have regard or any sufficient regard for his own safety; 3. Failing to conduct and / or comport himself in a reasonable and prudent manner when it was unsafe to do otherwise; 4. Restricting and/or provoking his attackers when it was unsafe and/or reckless so to do.
The defendant asserts further or alternatively that the plaintiff, with full knowledge of the risk of such injury and or conduct of armed robbers, voluntarily and/ or willingly accepted the risk of such injury and/or damage and that therefore the defendant owed no duty of care to the plaintiff in respect of such risks. The defendant denies that it was negligent and/or that any of it's acts or conduct caused the plaintiff any loss or damage as alleged or at all.
The evidence on behalf of the plaintiff was adduced through himself and two witnesses, namely, Melissa Taylor and Francis Deal.
The plaintiff told the court that he was employed by the defendant from 1980 and sent off by Winn Dixie, the previous owners of the defendant to school in Miami where he continued to work at one of their stores. He said he was assured by the general manager at the time that his transfer to Miami would not affect the continuity of his employment. He returned to the defendant's employ in 1987 and worked as junior assistant manager for two years, assistant manager for two years and store manager from 1992 until May 1994, when he was dismissed.
This evidence was disputed by the defendant and on cross-examination, the plaintiff capitulated and agreed that he had not been in the continuous full-time employment of the defendant for that period.
The documentary evidence, in any event, reflects that the plaintiff was originally employed by the defendant on the 9 th April, 1980 but was terminated effective 16 th August, 1985 due to his return to school. A full-time employment application dated July 10 th 1987 shows that on that date he was placed in the full-time employment of the defendant.
On the evidence, I find that the plaintiff was in the full-time, continuous employment of the defendant only from the 10 th July, 1987 until the 4th May, 1994.
As store manager, the plaintiff was responsible generally for the management and control of the food store that he was assigned to and his duties included making up the payroll, ensuring the store was kept in a clean and sanitary condition both inside and out, merchandising, inventory control, and employee and customer relations, among others. He was responsible for some 65 employees.
His remuneration was established as $602.40 per week, with overtime being paid for Sundays and holidays. Bonuses were given at the discretion of the general manager.
The plaintiff considered himself a good store manager and thought he had performed his duties well. He asserted that he was the best inventory control person of all of the managers at City Market at the time and was transferred from the Cable Beach store to the then recently opened Market Street store to solve the inventory problems there. He was especially proud of the award that he won at the Balliou Hill Road store for best inventory control and for keeping the cleanest store. For this accomplishment, he was given a bonus of between $ 9,000 and $13,000 in either 1991 or 1992.
The plaintiff produced a number of photographs of the displays which he had set up at the Market Street store in 1993, showing, he said, his ability to display merchandise and to keep his store in a neat and tidy manner.
On the 4th May, 1994, the plaintiff said he was told by Mr. Bruce Souder that the store had been left in an unsanitary condition, that the merchandising practices at the store were unsatisfactory and that he did not intend to tolerate it. He said he was then dismissed notwithstanding he had received no complaints concerning the condition of the store or any other complaints prior to this.
He denied ever seeing the disciplinary action forms dated the 5 th May 1992, 2 nd September, 1992 and the 18 th January 1994 or an inter-office memorandum dated the 19 th January, 1994. He denied the complaints were discussed with him at any time before his termination, admitting only that matters such as how the store could generate more sales, how managers could motivate the employees to work harder and minor matters concerning the cleanliness of the store were discussed with him. He said matters such as inventory control, the maintenance of better sanitation levels and security were generally discussed in management meetings with all of the managers, but were never specifically addressed to him or discussed with him.
He denied he had committed any of the infractions alleged by the defendant and denied he was ever warned of termination. He maintained his employment had been terminated without cause.
On cross — examination, he again denied ever being warned about inventory violations, sanitation and the other matters referred to in the disciplinary action forms and the inter-office memorandum.
He said Mr. Floyd Moree only raised the cleanliness of the store with him on occasions when the packing boys or the cleaners missed something and that Mr. Moree had spoken to him about inventory control only in commending him for the good job he had done in the back.
The plaintiff admitted he was in the business of ordering parts for cars but said he had gotten into that business about 11 months after his termination and because he was unable to find a job. He denied being in that business at the time of his employment with the defendant, but admitted that in his spare time, he used to sell cars. He denied that he was told about his absences from his job.
He denied the suggestion that after getting into his own business, he spent less and less time at the defendant's store and this resulted in a lack of inventory and a failure to maintain proper sanitary conditions.
On re-examination, he said he had looked for a job at a number of places and it took him 11 months to find employment, as the economy at the time was bad. He asserted that during that time he had to live off his savings, and at the end of that time he decided to invest the savings he had left, and open a business of his own.
I found the plaintiff to be a credible witness, although I found his memory with respect to dates and figures rather poor.
The plaintiff is supported by the evidence of his witnesses who both say he was a good...
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