Wayne Saunders v Bahamas Experience Limousines and Tours

• Jurisdiction: Bahamas
• Judge: Keith H. Thompson
• Judgment Date: 26 September 2013
• Docket Number: IT/NES/1310/09
• Court: Industrial Court (Bahamas)

Between:

Wayne Saunders

Applicant

and

Bahamas Experience Limousines and Tours

Respondent

Before:

His Honour Keith H. Thompson

IT/NES/1310/09

INDUSTRIAL TRIBUNAL

New Providence

Appearances:

Mr. Obie Ferguson of Counsel for the Applicant

Mr. Errol McKinney, Labour Advocate for the Respondent

DECISION

1 This matter came on for hearing on the 21 ^st and 22 ^nd November, 2011. The Applicant's claim is for Wrongful Dismissal and Breach of Employment Contract. At the outset of this trial, the representative of the Respondent advised the court that he was not in possession of anything from the Applicant. In this regard we admonished all parties appearing before the Tribunal that ambush law is not encouraged or tolerated. The Respondent must know what case it has to meet. The matter was stood down for a few minutes for counsel to ensure that the Applicant's bundles were put together properly.

EVIDENCE OF THE APPLICANT:

2 The evidence of the Applicant is that his employment with the Respondent began in 1999. There was a base salary of $350.00 per week and he averaged about $120.00 per day in tips. A letter dated the 25 ^th, September 2005 was produced and shown to the witness. The letter obviously contained a mistake in that it states that the Applicant earns $7,450.00 per week and an average gratuity of $120.00 per day. The weekly figure is obviously a mistake. The letter was entered into evidence as Exhibit “W.S. 1” taking into account the mistake.

3 The Applicant worked six days per week. He went on to explain why it was that he no longer worked for the Respondent. According to the Applicant, on November 22 ^nd, 2007 he called in sick and spoke to one Cindy Frances and told her to pass the message to Ms. Penn the Human Resource Manager. Upon his return to work on the 23 ^rd November, 2007, he was told by one Darren, the receptionist not to swipe in but to go and see Ms. Penn. When the Applicant went to see Ms. Penn he was given a letter of suspension for two weeks. The Applicant in turn gave her a doctor's certificate. According to the Applicant, Ms. Penn then told him that her heart was full and that she was only following instructions. The Applicant then wrote a letter to Mr. Peter Symonette informing him of the nature of him calling in sick and about his suspension but he says Mr. Symonette never replied.

4 The Applicant then reported to work some two and a half (2 ¹/₂) weeks later. He went on to explain that during his time with the Respondent, they started to find various faults with him and he says it was only because he was a union member. At one point he says they claimed that he was moving the vehicle back and forth without authorization. This he says he would never do because they have a G.P.S. system whereby they can detect the movement of each vehicle and even shut them down automatically.

5 In 2008 the Applicant had a death in his family, his father, and he had to travel to Toronto, Canada for the funeral. He was given leave of absence but had to bring back copies of the obituary if he wanted to remain employed. The Applicant says he was asked by Mr. Peter Symonette if he noticed what happened to some of his union members and that the Applicant must not think that it can't happen to him. He says this made him feel as if he was being forced into not being employed. The Applicant says it was a threat to him. Upon returning from Toronto, the Applicant gave all of the documentation to Ms. Penn. Two months later the Applicant requested three (3) days off to go to Canada to deal with his father's estate. He called in to find out if his request was honored and he says he was told yes. He didn't say by whom. The Applicant travelled to Toronto on the Monday and returned on Friday. He worked on Saturday and Sunday and was dismissed on Monday. At this point, Counsel for the Applicant produced and put to the Applicant a medical certificate dated the 22 ^nd November, 2007 for one (1) day off work. The certificate was entered into evidence as Exhibit “W.S. 2”. When asked whether the certificate was ever challenged by his employer, the Applicant said yes it was challenged in that his doctor told him that a lady had called by the name of Ms. Penn and was told by the doctor that he did in fact write the sick certificate but couldn't go into any further details.

6 Counsel for the Applicant then turned his attention to a letter the Applicant wrote to Mr. Peter Symonette. The letter is dated the 26 ^th November, 2007. The Applicant was asked to read the letter into the record which he did. The letter is set out in full below:

LETTER OF 26 NOV. 2007

“HAND DELIVBER

November 26, 2007

Peter Symonette

Bahamas Experience

Bay & Christie Street

Nassau, NP Bahamas

Dear Mr. Symmonett:

Please be advised, on Nove4mber 22, 2007, I was scheduled to report for work at 4:00 p.m. I was feeling ill and could not report to work. I called into the office on November 22, 2007 and spoke with Cindy Francis to inform her that I was not feeling well and was calling in sick and also to ensure April Perm — Human Resource Director was aware that I called in sick. On November 23, 2007 I was scheduled to report to work at 4:00 p.m. I reported to work at approximately 3:45 p.m. and I was informed by Darren the receptionist to not swipe in and to report to Mrs. Perm office. I then reported to Mrs. Perm's office and she stated to me that “I have a letter for you and that I must read it and sign for the letter.” I began to read the letter which stated “that I alleged to have called in to work on November 22, 2007 and stated that I would not be coming to work because it was my birthday and that it was against company's policy and therefore I would be suspended for two weeks and could not return to work until December 10, 2007. I then stated to Mrs. Perm that I did not agree with the letter and could not sign the letter due to that reason. Because when I called into work I just stated to Cindy that I was calling in sick and would not be coming into work today. Mrs. Perm informed me if I did not sign for the letter I could not get a copy of the letter. I called Cindy into Mrs. Perm's office to verify what I stated to her when I called in sick on the day in question. Cindy stated to Mrs. Perm he just called in sick.

The company's policy is that we are allowed seven (7) sick days a year that we are paid for. I called in sick for one day and was told that I am suspended for two (2) weeks. Also December 10 ^th, 2007 would be more than two weeks.

I am respectfully requesting a meeting with you to discuss this matter further. You can reach me at (242) 423-5611. Your consideration in this matter will be greatly appreciated.

Respectfully submitted,

(Wayne Saunders' signature)

Executive Chauffeur

C: April Perm — Human Resource Director”

7 The above letter seeks to explain the Applicant's absence and requests a meeting with Mr. Peter Symonette. The letter was entered into evidence as Exhibit “W.S. 3”. The Applicant was also referred to a termination letter which he spoke about in evidence. That letter is dated the 11 ^th day of August, 2008. The Applicant confirmed receiving such letter. However, the Applicant says that he did not receive any monies upon termination for accrued vacation and he couldn't recall whether he was paid for time worked.

8 According to the Applicant the mode of payment was that his salary would be directly deposited to his Royal Bank of Canada account. The Applicant's evidence is that he was also not paid for the two (2) weeks he was suspended. The letter is set out below:

TERMINATION LETTER

“Symonette's Marketing Group

Wayne Saunders

Nassau, Bahamas

Dear Mr. Saunders,

SUMMARY DISMISSAL

Further to our letter dated 23 ^rd November, 2007, you were advised that subsequent act will result in summary dismissal. Please be advised effective immediately your services are no longer required at Bahamas Experience Limousines & Tours (BET), Symonette's Marketing Group.

The Company has decided to summarily dismiss you due to breach of Company's Policies.

BET is a reputable, leading service and tourism management Company and these actions do not reflect the standard or quality of personnel we want to retain on our employ.

You are hereby required to return all uniforms, keys, radio and any other items belonging to the Company at this time.

Salary earned for the current period had been directly deposited to your bank account.

We wish you the best in your future endeavors.

Yours sincerely,

SYMONETTE'S MARKETING GROUP

(Signature)

A.R. Penn, CM, CHRM

Manager, Human Resources”

9 The Applicant's counsel directed the Applicant's attention to the sentence before the last which states;

“Salary earned for the current period has been directly deposited to your bank account.

10 However, the Applicant says he does recall that. The letter was entered into evidence as “W.S. 4”.

11 It is the further evidence of the Applicant that when he commenced employment with the Respondent, he did not receive a handbook nor did he sign for one. In fact the Applicant says that he never got a handbook. However, Exhibit “B.E. 1” says otherwise. This exhibit is the acknowledgement of receipt for the employee handbook which bears the Applicant's signature.

12 The Applicant says that after being terminated, he made legitimate attempts to find work. However, he only found employment about a year and two months later. When asked by the court what work he was presently doing, he says he became self-employed. The Applicant was asked by the court where did he seek employment and he said with construction places. However he says he didn't check limousine places because they weren't hiring. The court commented that he would have had to ask them to know that they weren't hiring. The court also asked the Applicant how it was that he came into possession of the handbook. He said that he got the book about four (4) years after he...