Thomas L. Spinks Moxey v The Hotel Corporation of the Bahamas {d.b.a. Radisson Cable Beach Casino & Golf Resort [herein called “Radisson”]}

• Jurisdiction: Bahamas
• Judgment Date: 04 September 1997
• Docket Number: No. 102 of 1997
• Court: Industrial Court (Bahamas)

In the Matter of The Industrial Relations Act

Thomas L. Spinks Moxey

Applicant

and

The Hotel Corporation of the Bahamas {d.b.a. Radisson Cable Beach Casino & Golf Resort [herein called “Radisson”]}

Respondent

No. 102 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

The Facts:

The Applicant commenced employment in the Security Department of Radisson on 14th September, 1993, as a security guard.

The Applicant alleges that sometime between 7:30 am. and 10:30 am. on 29th August, 1996, his grey 1990 Mitsubishi Lancer GL was broken into while it was parked in the staff parking lot of Radisson, and several items were stolen therefrom including as follows:

• {i} Pioneer tape deck valued at One Hundred and Fifty-nine Dollars {$159.00}

• {ii} Ash tray — value unknown.

• {iii} Contents of ash tray including a small bottle of Drakar cologne oil valued at Fifteen Dollars {$15.00}; one rope and one flat silver chain together valued at One Hundred and Thirty Dollars {$130.00}; foreign coins of unknown value.

• {iv} One cassette tape valued at approximately Fifteen Dollars {$15.00}

The Applicant sought to recover compensation from Radisson with respect to the damage to his vehicle, and with respect to the items allegedly stolen therefrom.

The Respondent alleges that the Applicant attempted to defraud Radisson by false pretences, and summarily dismissed the Applicant on 30th September, 1996.

The Applicant avers that his claim against Radisson in respect of the damage to his vehicle and items stolen therefrom is legitimate, and in the circumstances he was wrongfully dismissed by Radisson.

The Applicant claims damages from the Respondent in the amount of Five Thousand Four Hundred and Forty-three Dollars and Eighty-five cents {$5,443.85}.

Representative For Applicant — Mr. Obie Ferguson Jr.

Counsel For Respondent — Mrs. Rionda Godet

DECISION AND REASONS

Consideration of the Evidence:

1 The Applicant testified that he arrived at work and parked his car in Radisson's parking lot at about 7:30 am. on 29th August, A.D., 1996. He said that the Security Guard of the parking lot was not there at the time of his arrival.

2 He said that he reported for duty at the hotel, and at about 10:30 am., he had occasion to go back to his car in order to get a telephone battery therefrom which he promised for a sub-contractor {exterminator}.

3 He testified that when he arrived at his vehicle he discovered that his rear right window had been smashed, and that the said items were missing.

4 He said that he went to the security booth of the parking lot, and asked the guard on duty if he knew about the damage to his vehicle. He said that the guard replied that he had not seen any suspicious persons in the yard, and did not know how his vehicle was damaged.

5 He testified that he immediately reported the matter to his supervisor, Mrs. Betty Romer, who told him to report same to the investigator, Mr. Gordon Scott.

6 He said that when he reported the matter to Mr. Scott, Scott said that he would take some pictures of the car as soon as he had finished eating.

7 When asked by the Tribunal why he didn't call the police, he said that he was waiting for Radisson to conclude its investigations.

8 He noted that when he parked his car in the parking lot, there were not many cars therein, but that when he returned, cars were parked on both sides of his car.

9 At the Hearing, he was shown photographs of his damaged vehicle, and the premises where he resided. The photograph of his residence appeared to indicate inter alia that there were a number of houses {including the Applicant's} close and adjacent to one another in what appeared to be a common yard area {on West End Avenue, off Blue Hill Road, directly opposite the National Insurance Board Building}.

10 He testified that he did not necessarily always park his vehicle directly in front of his residence, and that he sometimes parked at other places in the yard.

11 He said that on the previous night {28th August}, he parked to the left of his residence, and the left side of his vehicle was facing the shop. He said that another vehicle was parked directly in front of his residence; it was a white cavalier, which belonged to his neighbour's girl friend.

12 When asked whether he noticed the condition of that vehicle prior to departing for work on 29th August, 1996, he said that he “didn't give the car a second look.”

13 He insisted that his vehicle was not broken into at his residence.

14 Mr. Godfrey Brenville Scott testified that he is an investigator attached to the Security Department of Radisson, and that he recalled the matter reported to him on 29th August, 1996. He testifed that he is an ex-policeman, having served on the Royal Bahamas Police Force for some six {6} years; he said that while he worked on the Police Force, he was attached to CID, and that he had some training in investigations from Scotland Yard.

15 He said that at about 12:48 pm on 29th August, 1996, he conducted an inspection of the damaged vehicle and its surrounding area in the staff parking lot; he said that his inspection was conducted in the presence of guard, Dion Brown.

16 He said that he took photographs of the damaged vehicle, and checked the ground in the surrounding area thereof for broken glass with negative results.

17 He stated that he also inspected the inside of the vehicle which was found to have broken glass in the rear seat, and he noted that there was a can of air freshener in the area under the space for the ashtray.

18 He said that he noted with curiosity that there was a significant deposit of dust around the area where the can was located, but upon removal of the can, there was a neat and clean circular area which had accomodated the can.

19 He said that he immediately became suspicious, because there was every indication that the can had not been disturbed for quite some time. He noted also, that there was no way that the can and the ash tray, which was allegedly only just stolen, could co-habit that area. This led him to conclude that the ash tray was indeed removed for quite some time.

20 He said that as a result of his findings, an inspection of the yard area of the Applicant's residence was carried out without the Applicant's knowledge at the time.

21 He said that upon his arrival at the Applicant's premises, a female police officer pointed out the area where the Applicant normally parked his vehicle, viz., in the front of his residence.

22 He said that he immediately noted broken glass on the ground in the front of the Applicant's residence, and fresh tyre tracks were clearly visible to the West of the broken glass. He said that when he compared samples of the broken glass found in the yard with the samples taken from the rear seat of the Applicant's vehicle in the Radisson staff parking lot, they appeared to be identical.

23 He said that he wrote up a report of the matter and submitted same to, and consulted with Mr. David Bullard and Mr. Sam Wallace, the Security Manager and the Director Of Security of Radisson respectively.

24 He opined that when a vehicle's window is smashed, most of the broken glass would fall on the inside of the vehicle, but that one...