Williams-mcintosh v Master Technicians Ltd
| Jurisdiction | Bahamas |
| Judge | Thompson, V.P. |
| Judgment Date | 27 May 2015 |
| Court | Industrial Court (Bahamas) |
| Docket Number | IT/NES/1446/10 |
| Date | 27 May 2015 |
Industrial Tribunal
Thompson, V.P.
IT/NES/1446/10
Mr. Errol McKinney Labour Advocate for the applicant.
Mr. Rawson McDonald of Counsel for the respondent.
Employment Law - Industrial dispute — Termination of employment — Dismissal — Probation — Gross misconduct — Whether applicant breached company policies — Whether behaviour constituted fundamental breach of employment contract — Whether termination justified — Application dismissed.
In this matter the applicant is making a claim for wrongful dismissal. However, the representative for the applicant set out his claim in an attachment to the Originating Application filed herein. The said attachment is set out below.
“APPLICANT'S CLAIM
KIMBERLEY McINTOSH
VS.
MASTER TECHNICIAN LTD.
1. Wrongful dismissal of employment contract. Failure to pay notice pay, termination pay, vacation pay and all other benefits.
2. Employer in breach of Section 21, 22, 23 and 24 of the Maternity and Family Leave Act by terminating the complainant wrongfully after she notified management that she was pregnant.
3. Employer is in breach of Section 29 of the Employment Act of 2001 by placing the complainant on probation for a second time after the complainant served her initial probationary period after she was employed on or about April, 2008.
4. Employer failed to pay the complainant 4% on all commission earned and paid to the complainant from April 2008 to February 23, 2010 as vacation pay.
5. Employer is in breach of Section 38 of the Employment Act of 2001.
(Signature of Errol McKinney)”
All of the above claims can fall under the one head of wrongful dismissal.
The applicant commenced employment with the respondent on April 10th 2008. She began in the position of sales agent/relief cashier. She explained that her job was to sell appliances, prepare quotes and invoices for the customers. She was also a relief cashier for just one hour during the day when the regular cashier went to lunch. This particular function she carried out for two days out of the week. Both duties continued up to the time of termination.
The applicant was paid $300.00 per week in addition to a commission. She was paid bi-weekly. She explained that the commission was a percentage of whatever they sold. She averaged that she made approximately $200.00 in commission every two weeks. The court then requested proof of the commission and the applicant's representative undertook to provide the court and the other side with the information. According to the applicant, she was terminated on February 23rd, 2010. At the time of termination she was still earning $300.00 in addition to commission.
The applicant further explained that her relationship with her immediate supervisor was so so, it wasn't too good. The immediate supervisor, Ms. Inga Thompson was new. Prior to being terminated, the applicant says that she received several warning slips both verbal and in writing. According to her, the disciplinary warnings started when the new supervisor, Inga Thompson came.
The applicant was directed to Tab 1, a warning dated November 06th, 2009. She identified it as one she had received. This document was entered into evidence as exhibit “K.M. 1” and is set out in full below:––
“K.M. 1”
MASTER TECHNICIANS LTD.
VILLAGE RD.
P. O. BOX SS6326
NASSAU, BAHAMAS
WWW.MASTERTECHBAHAMAS.COM
“MASTER TECHNICIANS
APPLICANCES & ELECTRONICS
DISCIPLINE WARNING FORM
Name:
Date:
Department:
REASON FOR DISCIPLINARY ACTION: (CHECK ALL THAT APPLY.)
Quality
Safety
Conduct
Attendance
Insubordination
Housekeeping
Miscellaneous
YOU ARE RECEIVING THIS DISCIPLINARY WARNING BECAUSE OF THE FOLLOWING ACTIONS DESCRIBE IN DETAIL IN BEHAVIORAL TERMS ADDITIONAL SHEETS ATTACHED
Negligence: Kim neglected to follow proper procedures while assigned to the cashiers cage on Nov 5th, 2009. Relief cashiers Y/C was allowed to and balanced with a shortage of $100.
UNLESS THIS PROBLEM IS CORRECTED, FURTHER DISCIPLINARY ACTION WILL BE TAKEN UP TO AND INCLUDING THE TERMINATION OF YOUR EMPLOYMENT.
(CHECK THE APPROPRIATE STEP IN THE PROGRESSIVE DISCIPLINE POLICY)
Written Verbal Warning
1 — Day Suspension
5 — Day Suspension
Written Warning
3 — Day Suspension
Employment Termination
Supervisor's Signature — (I. Thompson's signature)
Date: Nov 6th, 2009
I have received this disciplinary action and understand that unless this problem is corrected, further disciplinary action will be taken up to and including the termination of my employment.
Employee's Signature
Date:
Human Resource Representative's Signature
Date:
Master Technicians Ltd.
Discipline Warning Form”
The applicant explained the warning. She says that she worked the Cashier's cage on this particular day. Usually the regular Cashier would leave right away. There is a relief cashier's drawer and apparently the relief cashier's draw was short by a $1.00. Counsel for the respondent however pointed out to the court that the document said $100.00 and not $1.00. She however denied that it was $100.00. She says it was only $1.00.
According to the applicant she was only notified of the shortage days later. However, she couldn't remember the date. She was then directed to tab 2 which she identified as a document which she received from Ms. Inga Thompson. This was entered into evidence as exhibit “K.M. 2(a) and (b). She identified the attachment as a letter she gave to the respondent.
She was then asked to read the first document which she did. She went on to explain that on that particular day she remembered that a call came. It was her husband calling about picking up their son. The supervisor was with a customer, Ms. Rosie Kemp. The applicant remembered the supervisor asking her for the Sub-zero book. She told the supervisor that she didn't know where the book was. This was a book that only the supervisor would use. According to the applicant, the supervisor never asked her to locate the book. In any event, she says she immediately came off the phone, looked for the book, found it and gave it to the supervisor.
A little later on during the day, the supervisor called the applicant to her desk and told her that she was going to suspend her for three days. The applicant then asked her why, what did she do wrong? She told the applicant that she didn't come to assist her right away and that warranted three days suspension. The applicant then called the human resources manager and spoke with her about it. She was suspended on the spot and so she called human resources back. When asked what did the supervisor say to her, the applicant said that she was told to just grab her belongings and leave. The applicant told her that it wasn't right but she said she didn't care, just leave.
When she called the human resources manager back after leaving, the human resources manager told her that Ms. Thompson didn't have the authority to suspend her. The applicant was then asked when did she draft the letter at “K.M. 2(b), she said she didn't recall. She was asked to read it out aloud for the court which she did. The letter is set out below:–
“K.M. 2A”
“MASTER TECHNICIANS LTD.
VILLAGE RD.
P. O. BOX SS6326
NASSAU, BAHAMAS
WWW.MASTERTECBAHAMAS.COM
MASTER TECHNICIANS
APPLIANCES & ELECTRONICS
DISCIPLINE WARNING FORM
Name:
Date:
Department:
REASON FOR DISCIPLINARY ACTION: (CHECK ALL THAT APPLY.)
Safety
Quality
Conduct
Attendance
Insubordination
Miscellaneous
Housekeeping
YOU ARE RECEIVING THIS DISCIPLINARY WARNING BECAUSE OF THE FOLLOWING ACTIONS. (DESCRIBE IN DETAIL IN BEHAVIORAL TERMS ADDITIONAL SHEETS ATTACHED
Gross Insubordination — Kim was asked to locate a catalog for a customer, in the presence of Ms. Rosie Kemp. Kim continued with her personal call & ignored my request.
UNLESS THIS PROBLEM IS CORRECTED, FURTHER DISCIPLINARY ACTION WILL BE TAKEN UP TO AND INCLUDING THE TERMINATION OF YOUR EMPLOYMENT.
(CHECK THE APPROPRIATE STEP IN THE PROGRESSIVE DISCIPLINE POLICY.)
Written Verbal Warning
1-Day Suspension
5-Day Suspension
Written Warning
√ 3-Day Suspension
Employment Termination
Supervisor's Signature: (I. Thompson's Signature)
Date: Nov 10th, 2009
I have received this disciplinary action and understand that unless this problem is corrected, further disciplinary action will be taken up to and including the termination of my employment.
Employee's Signature
Date:
Human Resource Representative's Signature
Date:
Master Technician Ltd.
Discipline Warning Form”
The applicant was then asked what was Ms. Culmer's response to “K.M. 2” (b) and she said that both she and the supervisor were called into a meeting. Ms. Culmer went over the situation and she agreed that what had happened did not warrant a suspension. She wanted to speak to Ms. Thompson in private so she asked the applicant to excuse herself. In light of this, the applicant says that she does not know how the situation was resolved between Ms. Thompson and Ms. Culmer.
When asked if she still remain suspended, the applicant explained that everything happened after her suspension. The applicant was then directed to the employee manual. She explained that she was referring to page 11, Section 15.1.2. The court then intervened and asked her which part of section 6 was she referring to in “K.M. 2 (b)? She said that she was referring to the communication, creed # 6.6.
“Resist the temptation of abusing any authority to punish or retaliate against an employee who seeks dialogue with me concerning our supervisor — subordinate relationship.”
The applicant was then directed to Tab 3 of the bundle of documents which is a letter dated December 1st, 2009. She identified the letter as one which came from a Ms. Taylor. She was then asked to read it which she did. The letter was entered into evidence as exhibit “K.M. 3” and is set out below:
“K.M. 3
MASTER...
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