Steven Kerr v Graycliff Restaurant

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 18 June 2014
• Docket Number: IT/NES/1429/2010

Between:

Steven Kerr

Applicant

and

Graycliff Restaurant

Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1429/2010

INDUSTRIAL TRIBUNAL

New Providence:

Present:

Mr. Devard Williams of Counsel for the Applicant

Mr. Jason Fernander, H.R. Manager for the Respondent

DECISION

1 This matter came on for hearing on the 4 ^th and 5 ^th September, 2013. The claim is for Wrongful Dismissal.

EVIDENCE OF THE APPLICANT:

2 The Applicant Mr. Steven Kerr commenced his employment with the Respondent in or about the year 1983 and was terminated by the Respondent on July 24 ^th, 2007. The Applicant's evidence is that at the time of termination he was a wine steward. His training came via travelling throughout the United States to various wine tasting events. He was employed with the Respondent for some twenty-four (24) years and was a wine steward for seventeen (17) of those twenty-four (24) years. When asked if he was ever accused of anything he said yes, he was accused of stealing a bottle of grgichills Carvernet. However, the Applicant denies stealing the wine.

3 The Applicant explained that every day a roll call is done. After the roll call the wine steward usually chooses a dining room in which to work. On the evening in question, he had the gallery dining room as his station. At the time he noticed that Mr. Paolo Garzaroli, the son of the owner of the Respondent had a party of two. The Applicant explained that his job was to sell the various wines and pour them. At some point and time he says Paolo came and borrowed his pen to take an order for cigars from table 308.

4 There were four (4) persons at the table which was being served by the Applicant. According to the Applicant, Mr. Garzaroli never returned the pen. The Applicant was serving his table from right after roll call until the end of the evening. It is the further evidence of the Applicant that on average he would serve about forty (40) people. He worked three (3) to four (4) days a week and sometimes there would be a party of Three Hundred (300) to Four Hundred (400).

5 According to the Applicant two persons out of the party of four (4) he was serving, were known to him and someone from that table ordered the bottle of grgichills. As he knew two of the individuals, he offered to charge the wine to his account and this included the bottle of grgichills. At the end of the Applicant's shift around 10:00 p.m., he decided to pour the wine out of the bottle into the picture. There was a wine boy working with him. As the shift came to an end and he was exiting the dining room, a waiter approached him and told him that he had a telephone call. The call was his ride to get home. The Applicant says that he was living in Gambier at the time. He proceeded to the kitchen to take the call. Upon taking the call, he was told by the caller that they were outside waiting for him. The Applicant went to make another stroke in the wine book to indicate that he was responsible for the bottle of wine but didn't have a pen. The cashier was not at her station at the time. He started to take his jacket to have it cleaned as the restaurant cleans the uniforms for them. According to him, it slipped his mind to make the stroke in the book and he exited the building.

6 The following day when he reported for work, the Maitre'D told him to take two (2) days off and he was subsequently fired. The two days were for an investigation. It is the Applicant's further evidence that he was a member of the Bahamas Hotel Catering and Allied Workers Union (“BHC&AWU”). He went on to explain that on the second day of suspension the Union came to represent him but the result was that he was fired. The Respondent said that he had stolen a bottle of grgichills. After the suspension when the Applicant reported for work, he was told that Paolo Garzaroli dug in every garbage bin to find the empty bottle. According to the Applicant, he left one bottle in the back by the wine cupboard and the other bottle on the table with the picture. He explained that in order to get a new bottle of wine they had to produce the empty bottle. However, he says it just slipped his memory.

7 The Applicant was then asked why was he looking for the cashier? and he said he wanted to tell her to make the stroke for him. According to the Applicant he was not given an opportunity to explain himself. The Applicant admitted that this kind of thing happened before with wine stewards. The Applicant went on to explain that when the strokes are not made in the wine log, the wine stewards would get together and pay for the wine. However, this was not allowed in his case. The Applicant testified that the bottle of wine in question was valued at $165.00. At this point, the court asked the Applicant, if he offered to pay for the two bottles of wine at a cost of $165.00 each and he said yes because they have an open cheque on which they could charge what they want. According to him, any staff member can charge items. However, he was not given an opportunity to clarify what had happened.

8 The Applicant further testified that when he returned to work, Mr. Fernander and Mr. Laing told him that they could talk for his job. They advised him that he was suspended for two days. During the meeting they were still saying that there was nothing they could do because the boss had already decided what he was going to do. When asked if he had said they found an empty bottle of grgichills in the garbage he said that is what he was told.

9 According to the Applicant, at the time of his termination he was earning $299.00 per week plus tips. He estimated his tips to be around $800.00 per week. There were no other benefits. The Applicant confirmed that he had already received his vacation pay which was collected for him by his then attorney Mr. Richard Horton. The Applicant's further evidence is that he never received a letter of dismissal he was just told that he was terminated. Once he was told, he went to the Department of Labour. There were three meetings. During the second meeting, the conciliator told Mr. Fernander that GrayCliff should bring a blank cheque. The Applicant posed the question; after twenty-four (24) years why would they call me a thief now?”

10 The Applicant continued his evidence by stating that he still loved the company and would be happy to have his job back. However, if that wasn't possible, he would accept money. As to how the accusation made him feel, he says he felt untrustworthy. He went on to testify that some of the things the owners of GrayCliff do, they weren't trustworthy either. He went on to explain that while he would stand out front to greet guests, he would hear Mr. Garzaroli tell the tourists; “these black people are thieves.” He says, many times he had inflated the price of the wines for the Garzarolies and put additional food and wines on cheques that the people never ordered. This he says he did over and over.

11 The further evidence of the Applicant is that if a party of 300 people came in, they will be looking at 150 bottles of wine. If they were not drinking fast, Anna Maria Garzaroli would tell him in advance to over charge the guests. She even went so far as to tell them to pour wine into a 5 gallon bottle which is then sold by the glass.

12 The Applicant says he has tried to find employment but has only been able to find part-time employment; a day here and there. At the time of giving evidence, the Applicant said that he had not been able to take care of his daughter. As to his duties, he was responsible for stocking the wine cellar which he says he built from scratch. He made the shelves etc. He explained that he started out as a wine boy. People now come to see the wine cellar. When he was fired, he was stocking the wine cellar. He says he stocked 298 bottles of Crystal and a week later the box was half empty so he went to Mr. Enrico Garzaroli and told him someone was stealing the wine only to be told; “all you fellas are thieves.”

CROSS-EXAMINATION OF THE APPLICANT:

13 Under cross-examination, the Applicant confirmed that the wine steward was responsible for noting the wines served to their guests in the wine book. The page from the wine book for the evening in question was produced and the Applicant identified his handwriting in the book. He pointed it out at table 309, 303, 307, 312 and 306. He explained 304/6654, as a skew number which is 6654. When asked why his name was written beside 304/6654, he explained that it was because he was paying for the wine. The Applicant denied having a personal relationship with any of the other persons at the other tables.

14 The Applicant was then asked to explain his duties starting from when guests are seated. He explained that he only needed to be at a table if the guests were having wine. He would firstly present the wine list and if a bottle or bottles are purchased, then he would be responsible for serving it. He would also be responsible for putting the wine on the guests' cheque. As it relates to the empty bottles, the wine boy or the wine steward would be responsible for the empty bottles making it to the back. According to the Applicant, the purpose for the empty bottles being returned to the checking station is to get a refill. The ticks on the wine log indicate additional bottles.

15 The Applicant's further evidence is that on the day he met with Mr. Jason Fernander and Mr. Laing there was no statement made about any other bottle of wine missing other than that of table 304. While the Applicant said that it would not benefit him to not. add the bottle of wine to the list, it would however be assumed that it was not served. The Applicant also agreed that if it was assumed that the wine was not served he wouldn't have to pay. The Applicant was then asked if he was familiar with the procedure set down by the union and management for the circumstances in which he found...