Vinette Davis v Reliable Janitorial Services

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Keith H. Thompson
• Judgment Date: 07 November 2014
• Docket Number: IT/NES/1487 of 2010

Between:

Vinette Davis

Applicant

and

Reliable Janitorial Services

1 ^st Respondent

and

Dwight Atherley

2 ^nd Respondent

Before:

His Honour Keith H. Thompson, Vice President

IT/NES/1487 of 2010

INDUSTRIAL TRIBUNAL

NASSAU, BAHAMAS

Appearances:

Ms. Monique Gomez of Counsel for the Applicant

No appearance by or on behalf of the Respondent

DECISION

1 Ms. Vinette Davis is claiming wrongful dismissal and or unfair dismissal in the alternative.

EVIDENCE OF THE APPLICANT:

2 Ms. Davis commenced employment with the Respondent on March 5 ^th, 2007. She was terminated on March 9 ^th, 2009. According to the Applicant she worked shifts. She either worked from 2:00 P.M. to 10: 00 P.M. or from 6:00 A.M. to 2:00 P.M or both shifts on the same day. She would therefore work eight (8) hours a day or sixteen (16) hours from time to time.

3 She was paid an average of $455.00 every two (2) weeks. Of course this would change from time to time depending on how she would have worked the shifts. As for days off, she only usually had one day off. When the Applicant was questioned about vacation, she said that she never had a vacation even though she was told by her employer that she was entitled to one (1) week.

4 The Applicant explained what happened to her one day on the job while posted at the Lynden Pindling International Airport (“the airport”). While she was sweeping the floor, which was a part of her duty along with cleaning the restrooms, a tourist who appeared to be in a hurry threw his suitcase on her leg and as a result of that she fell and injured her leg.

5 The Applicant got up and informed the supervisor that a tourist had thrown a suitcase on her leg and she fell and hurt herself. The supervisor said that she would tell Mr. Atherley. The pain did not come on the Applicant the same day. However, on the following day she started to have a problem with her knee and went to seek medical attention.

6 She attended the offices of Dr. Dorsett on Poinciana Drive who, after examining her, referred her to Dr. Robert Gibson. Dr. Gibson had the Applicant take an X-Ray of her leg and once he had read the X-Ray recommended surgery. The Applicant had the surgery in or about August 2008. She has produced a series of sick slips confirming her absence from work on account of the accident which she had on the job. We accept those slips and find no need to set them out herein. The slips are dated in the following sequence:

1. 25.1.09 —	4 weeks
2. 23.2.09 —	4 weeks
3. 23.3.09 —	4 weeks

7 As it relates to the medical certificates, the Applicant along with her husband attended the offices of the Respondent to provide them with the medical certificates. According to her, no one from the Respondent tried to contact her during the entire ordeal. On one occasion when the Applicant went along with her husband to take some medical certificates it was raining. She knocked on the door and a Ms. Brown, the Secretary let her in. The Applicant gave the certificates to Ms. Brown.

8 Ms. Brown in turn asked the Applicant; “what she came there for”. The Applicant responded by telling Ms. Brown that she came to hand in the medical certificates and that the company owed her some money. Ms. Brown then told the Applicant that the money had been sent to the bank but when the Applicant checked her account no money was there. The Applicant then went back to the Respondent to remind them that she had also worked some overtime. It was on this occasion that the owner of the Respondent, Mr. Atherley himself physically pushed her and told her to get out of his place. According to the Applicant, as she was still having problems with her leg and still using a walking cane, she almost fell. The Applicant, not wanting to get into any problems told her husband that they should leave.

9 After leaving, they proceeded to the Nassau Street Police Station where they gave a statement and the Applicant was given a piece of paper to attend the doctor. Since this last incident, the Applicant, up to the time of giving evidence hasn't heard from the police. The Applicant has not been back to the office of the Respondent. However, she did call the Respondent's office but didn't speak with Mr. Atherley. She spoke to Ms. Brown who told her that she didn't have a job with the Respondent and then hung up the phone on the Applicant.

10 The Applicant's further evidence is that she was paid for time worked however, she was not paid any vacation. The Applicant confirmed that her employment commenced on March 5 ^th, 2007 and she was terminated on March 9 ^th, 2009. She was not paid any notice pay or pay in lieu of notice prior to the termination, the Applicant never received any warnings from the Respondent about her conduct or otherwise. The Applicant claims that she worked overtime quite often especially when it rained or it was inspection time.

11 The Applicant went on to testify that her employer never once checked for her after she had her accident. She has actively sought new employment and found employment for only two (2) days with a company but hasn't been able to secure any employment since she worked the two days. She has even registered with the Department of Labour and went on an interview but never heard back from the person with whom she had the interview. She continues to look for employment but she says she is always told that things are slow or they will get back to her.

12 At this point counsel for the Applicant made an application pursuant to s. 65 (2) of the Industrial Relations Act Chapter 321 (“the Act”) and s. 16 (1) of the Industrial Relations (Tribunal Procedure) Rules 2010 (“the Rules”) which respectively state;

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.”

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.”

13 The Application was acceded to and Dwight Atherley was joined as 2 ^nd Respondent to the instant matter.

THE LAW:

14 The Applicant's claim is for Wrongful Dismissal and in the alternative, Unfair Dismissal.

WRONGFUL DISMISSAL:

15 There are two conditions which must be met in order to mount a successful claim for wrongful dismissal. The first condition is that the employer terminated the contract of employment without notice or with inadequate notice and the second condition is that the employer was not justified in doing so.

16 Based on the evidence of the Applicant, there was no payment of notice, pay in lieu of notice or any pay at all. In fact, the Applicant wasn't paid for vacation earned. Therefore, she achieves the first condition.

17 As to whether...