Tenecia Wood v Green Parrot Ltd D/B/A/ Green Parrot Restaurant and Bar

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 26 November 2014
• Docket Number: IT/NES/1451/10

Between:

Tenecia Wood

Applicant

and

Green Parrot Limited D/B/A/ Green Parrot Restaurant and Bar

1 ^st Respondent

and

Peter Maury

2 ^nd Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1451/10

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Tenecia Wood in person

No appearance by or on behalf of the Respondent

DECISION

1 This matter is one in which wrongful dismissal is being claimed. We are satisfied that the Respondent was properly served. However, the Respondent chose not to appear. The matter therefore commenced in the absence of the Respondent.

EVIDENCE OF THE APPLICANT:

2 The Applicant commenced employment in or about July 2009 and was terminated in or about February, 2010. At the time of the termination she was a manager. She could not hire but could fire and she managed about twenty (20) staff members at the East Bay Street location. Her salary was on average of $500.00 per week or $100.00 per shift. However, her take home pay per week was some $700.00. The only benefit she was entitled to under her employment contract was a duty meal which she valued at about $14.00.

3 She went on to explain what lead to her termination. She started out by telling the court that she was a very faithful employee to the Respondent. She would work whenever she was asked to on any shift. In particular she worked every Friday night which was the one night when the evening would literally turn into a dance and she would not leave work until about 5:00 A.M. the following morning with of course no additional compensation.

4 At some point, she had an opportunity to go on an interview at Bennegins for the position of general manager. She used to be the manager there previously. She got the position and advised Mr. Peter Maury the owner of the Respondent of the same. She and Mr. Maury agreed that she would remain employed with the Respondent but the employment would be reduced to three shifts per week.

5 About two (2) months into the arrangement, the Applicant called the Respondent to enquire about her schedule for that week but was told that she was taken off of the schedule by Loren the General Manager. What she was also told was that they would call her if they needed her to work but they never did. It is the further evidence of the Applicant that at no time during her tenure with the Respondent did she ever have any issues with management.

6 She therefore went to the Department of Labour to find out what she was entitled to. During the first meeting, she met with the conciliator and Loren. Loren could give no reason (s) as to why she was taken off the schedule other than Peter told her to do so. At the second meeting, Peter attended himself. During the meeting, he threw a tantrum, got up and walked out and never returned. On his way out he whispered that the Applicant was doing Bennegins work on his time. However, the Applicant explained why he made that statement.

7 She explained that she had to terminate the services of one of the employees at Bennegins and the employee had placed a threat to beat her up on face book. Someone called her and told her about it and she knew she had to retrieve the evidence before it was taken down, so all she did was to go on the computer and print the threat so that she could take it to the police.

8 On his way out Peter also whispered that at least he didn't have any employee waiting to beat him up.

9 At this point, having heard the above evidence the court explained firstly Section 65 (2) of the Industrial Relations Act Chapter 321 (“The Act”) which states:-

S. 65 (2) The Tribunal may, during the course of any dispute pending before it direct that any agents of the employer or any successors to or any assignees of, the business of the employer who is a party to the dispute, shall be joined or substituted as a party to the dispute, and any order or award of the Tribunal in such dispute (whenever made) shall, save to the extent that it is otherwise expressly provided in such order or award, be binding on the successors or assignees of the employer.

10 Secondly, the court explained s. 16 (1) of the Industrial Relations (Tribunal Procedure) Rules 2010 (“The Rules”) which states;-

S. 16(1) The Tribunal may at any time on the application of any person made by Notice to the Secretary in Form M in the Schedule or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.

11 The court then put the question to the Applicant as to whether she wanted to make use of the above sections and she said yes. Having indicated to the court that she wished to make use of the above sections the court joined Mr. Peter Maury in his personal capacity.

12 The Applicant was paid by cheques weekly and at the time of giving evidence, was employed by Bahamas Telecommunication Corporation in Freeport, Grand Bahama.

THE LAW:

13 In the instant matter, the Applicant claims that she was wrongfully dismissed. We accept the evidence of the Applicant that she was in an employment relationship with the Respondent. We also accept the Applicant's explanation for the only issue she could recall, which may have lead to the termination of the employment relationship.

14 In order to be successful in a claim for wrongful dismissal, two hurdles must be overcome. Firstly, the Applicant must be able to show that the employer terminated her contract of employment which we say she has done. Secondly, she must be able to show that the Respondent was not justified in doing so. We conclude that based on the evidence before us we find no justification for the termination, due to the fact that in the first instance, she was a manager with the authority to use the computer and in the second instance she would have been trying to secure evidence in order to file a complaint with the police as a result of a threat to her personal safety. Her evidence was that she only went on the computer to download the evidence before it was taken down by the perpetrator. As we said before, we accept that explanation and find that the Respondent acted in an unreasonable manner.

15 In light of the above, the Applicant has overcome the two hurdles to make out a successful claim for wrongful dismissal. The above stated legal position is trite law. We have stated that the Respondent was not justified in terminating based on the evidence presented. For the sake of clarity, the question to be asked then is; “when is a termination justified?” The answer to such a question is that it is justified basically in the same circumstances in which an innocent party would be entitled to terminate any other contract when the other party to that contract has committed a fundamental breach.

16 When this principle is aligned with labour law, it means that an employer is entitled to dismiss an employee summarily if the employee commits an act of gross misconduct. The test as set out in LAWS v. LONDON CHRONICLE (INDICATION NEWSPAPERS) [1959] 1 W.L.R. 698 is whether the employee has disregarded a fundamental term of her contract of employment. In that case LORD EVERSHED MR said;

“To my mind, the proper conclusion to be drawn from the passages I have cited and the cases to which we have been referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that the question must be — if summary dismissal is claimed to be justifiable — whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that willful disobedience of an order will justify summary dismissal, since willful disobedience of a lawful and reasonable order shows a disregard — a complete disregard — of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, struck at fundamentally.”

17 In consideration of the evidence before us, we therefore find that the Respondent could not be heard to say that the Applicant breached her contract of employment in any way. We found no evidence of any disregard for...