Tarneisha Cole v Grants Town Enterprises

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 27 September 2013
• Docket Number: IT/NES/1391/2010

Between:

Tarneisha Cole

Applicant

and

Grants Town Enterprises

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1391/2010

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Applicant in Person

No appearance by or on behalf of the Respondent

DECISION

1 The hearing of this matter commenced on the 13 ^th May, 2013. The Applicant's claim is for Wrongful Dismissal.

2 The evidence of the Applicant is that she was employed by the Respondent on the 7 ^th January, 2006 and was terminated on August 31 ^st, 2009. Ms. Carolyn Bowleg, now deceased hired her. Initially the Applicant was hired to just clean shelves and mop the floors. Her salary was $175.00 per week. The Applicant produced pay-stubs which she says she started receiving about a year after she had commenced employment with the Respondent. The pay stubs were shown to the Applicant and she identified them as being the pay stubs she received. She also received a pay increase when she went on cash. Her last pay increase was between May – June, 2009. The stubs. showed that the Applicant worked overtime however, the Applicant's evidence is that she was only paid straight time. This started happening from she commenced her employment with the Respondent. She did enquire about this at the Department of Labour and was told that she should be compensated for the extra hours worked but she did not raise it with management because she did not want to risk being terminated. The issue was never addressed. The Applicant was never required to work holidays.

3 The Applicant was never reprimanded during her first years of employment. Her attendance record was also good. She may have been absent for about five (5) days during her entire employment with the Respondent. According to the Applicant, the Respondent operated some four stores, Carmichael Road, Mall at Marathon, Blue Hill Road and Bernard Road. The Applicant worked at all of the stores. The year she was terminated she was at the Carmichael Road Store after returning from maternity leave. The Applicant was promoted to cashier and then supervisor. The promotion to supervisor was in or about 2008, however, she was on probation for about six (6) months. This promotion brought with it a salary of $250.00. She also received a job description in writing. According to the Applicant, she fulfilled all requirements. Every year the store and its supervisor was appraised by Ms. Carolyn Bowleg.

4 It is the further evidence of the Applicant that the appraisals were done by scores and her last appraisal was 24. As it relates to National Insurance, in 2008 she went on maternity leave. She made a claim for maternity benefit and received it from National Insurance. However, she received no payment from the Respondent. When asked if there was a reason why she didn't receive it, the Applicant explained that in the Respondent's handbook it says that the company doesn't pay for maternity leave. In fact on page 7 of the handbook it states;

MATERNITY LEAVE

“We are not responsible for paying weekly salary for maternity leave.

National Insurance Board will pay you weekly for your leave. You are granted ninety (90) days maternity leave.”

5 As it relates to the above, Section 17(1) of the Employment Act 2001 states;

“Every female employee is, in addition to her annual holiday arising under this Act or under any other law or agreement pertaining to the conditions of her employment, entitled to maternity leave upon delivering to her employer —

• a. a certificate issued by a medical practitioner setting forth the expected date of her confinement; or a midwife setting forth the actual date of her confinement;

• b. a certificate issued by a medical practitioner or a midwife setting forth the actual date of her confinement;

and without prejudice to section 4 in addition to the grant of maternity leave the payment to her by the employer during such leave once in every three years of a minimum sum equivalent to thirty-three and one-third per cent of that portion of her wages which does not exceed the National Insurance ceiling on insurable wage;

Provided that where the employee is not entitled to any benefit under the National Insurance Act during such leave by reason of the neglect of or conduct on the part of her employer the minimum sum payable under this subsection shall be equivalent to the aggregate of the amount of benefit which would have been payable to her under that Act and the foregoing provisions of this subsection but for such neglect or conduct.”

6 The law speaks for itself. The issue is res ipsa loquitur. We simply point this out for the edification of another employer or employee who in the case of the employer may be of the same opinion as the Respondent in this matter, or an employee who may find himself or herself in the same position of the applicant in this matter. There is no claim for outstanding maternity pay as the Applicant has already received the outstanding payment.

7 In August of 2009 the Applicant was assigned to the Carmichael Road Store. She was also about six (6) months pregnant at the time. According to the Applicant her employer knew she was pregnant. She explained that one Crystal Johnson one of the Managers called her on the phone and told her she had a dream. However, she doesn't know if Crystal communicated her pregnancy to the owners. The Applicant recalled that on Monday August 31 ^st, 2009 she was off. However, she received a phone call from management and they asked if she could report to the office for 3:00 p.m. She told them she couldn't make it. They then told her to report to the office at 10:00 a.m. on Tuesday September 01 ^st, 2009. She went to the Carmichael Road Store at about 7:40 a.m. to open up first. There weren't any other staff members there when she arrived. She went over to the convenience store to call her boss Ms. Bowleg and on the way back another staff member arrived. The reason why she went to the convenience store was because her keys weren't working, she couldn't get into the store. Ms. Bowleg asked her if she had received a call from the office and the Applicant told her yes. Ms. Bowleg then told her that Ms. Ellen Bowleg was on her way to open the store. She arrived around 8:20 a.m. By this time the cashier had also arrived. This particular cashier is no longer employed with the Respondent.

8 When Ellen Bowleg arrived she reminded the Applicant about the meeting at the main office. The Applicant told her that she didn't forget but just wanted to wait until the traffic had died down as it was the first day of school.

9 Upon opening the shop door Ellen Bowleg asked the Applicant for the keys. The Applicant walked in freely. When she went around the counter to help the cashier, Ellen said she was going to deal with that so the Applicant went in the back to eat her breakfast until it was time to leave for the meeting. While the Applicant was in the back, Ellen went in the back and according to the Applicant said to her in a rude way that she had to leave the premises. The Applicant says that she tried to explain the situation but to no avail. Ellen said to her;

“yall head too hard, yall don't listen this the same reason why you and your children in the predicament yall in.”

10 This she says got her upset. She confided in one of the managers and the manager must have told Ellen. The Applicant, being upset, told Ellen that she wouldn't know anything about children because while she was getting rid of them the Applicant was trying to bring them forth. Ellen then called the police telling them she had an employee who wouldn't leave the premises. The Applicant asked Ellen to buzz the door. The Applicant was waiting for about twenty (20) minutes to be buzzed out. The Applicant then started to talk about the baby thing again and this made Ellen mad. While Ellen was playing with the buzzer the Applicant was able to open the door and leave. Ellen Bowleg is the sister of Carolyn Bowleg. The Applicant proceeded to the meeting shortly before 9:00 a.m. and arrived at between 9: 30 or 9:45 a.m. The meeting was with Ellen Bowleg. The Applicant left Ellen at the Carmichael Road Store however, Ellen got to the main office before her. Ellen handed the Applicant an envelope which she read and understood. This is when she called Ms. Georgette Butler. The letter was dated August 31 ^st, 2009 and the incident with Ellen was September 01 ^st, 2009. The last day the Applicant worked was Sunday August 30 ^th, 2009.

11 There were some issues on the job that day. The Applicant explained that the store normally opens at 9:00 a.m. every Sunday and through the week at 8:00 a.m. One of the managers told the Applicant by word of mouth that Carolyn Bowleg changed her mind and wanted to open at 8:00 a.m. instead of 9:00 a.m. because it was the opening of school. It really slipped her she said. The schedule had come out with 9:00 a.m. on it.

12 The Applicant arrived at the store shortly before 9:00 a.m. She met two of her co-workers there, the cashier and another worker. They were outside waiting. No one called the Applicant about the new time for opening the store. The two employees who the Applicant met there told her they were there for 8:00 a.m. and so she had to put that in as their time. The Applicant did not receive anything from management about the mix up but she did call Crystal Johnson and told her about the mix up. According to the Applicant, she didn't know how reprimands worked because she was never reprimanded.

13 When asked whether she had seen the Defence, the Applicant said yes. Counsel for the Applicant then asked her if she saw the reference to her receiving written warnings and she said yes but she had never actually received any written warnings. The Applicant was referred to page 3 of the company's handbook and in particular the section on the disciplinary process and counsel asked the Applicant to read it which she did. She...