Woodside v Lickety Split Ltd

JurisdictionBahamas
CourtSupreme Court
JudgeCharles, J.
Judgment Date14 Sep 2017
Docket Number2014/CLE/gen/00049

Supreme Court

Charles, J.

2014/CLE/gen/00049

Woodside
and
Lickety Split Ltd
Appearances:

Mr. Obie Ferguson for the plaintiff

Ms. Michelle Y. Campbell for the defendant

Employment Law - Whether plaintiff was unfairly dismissed or summarily dismissed.

On or about April 1998, the plaintiff commenced employment with the defendant. She rose from a regular pantry worker to supervisor and then to manager. In early February 2014, the plaintiff was summoned to the office of the Managing Director (“MD”). The MD told her that he was receiving numerous anonymous harassing telephone calls from someone who would not identify himself. The MD suspected that the caller was the plaintiff's husband. On the same day, the plaintiff left and disclosed to her husband what was said in the meeting. Her husband wanted to meet with the MD. In the meeting, he was loud and boisterous and they were both ordered to leave the MD's office.

On 28 February 2014, the plaintiff was summarily dismissed for dishonesty. By letter dated 7 April 2014, the defendant's Counsel wrote to the plaintiff's Counsel stating that the plaintiff was dismissed on the grounds of gross insubordination/insolence and gross misconduct in accordance with s. 31(d) and (i) of the Employment Act, Ch. 321A of 2001 (“the Act”) and not for dishonesty. At the trial, the MD testified that the plaintiff was summarily dismissed for breach of trust/confidence.

HELD,

finding in favour of the plaintiff,

  • (1) The plaintiff was unfairly dismissed against her right not to be unfairly dismissed pursuant to section 34 of the Employment Act

  • (2) Although unfair dismissal is not defined in the Employment Act, section 35 gives a clear indication of what is the threshold test. It provides for the determination of the question whether the dismissal of an employee is fair or unfair and that question shall be determined in accordance with the substantial merits of the case.

  • (3) An employer may summarily dismiss an employee without pay or notice when the employee has committed a fundamental breach of his contract of employment or has acted in a manner repugnant to the fundamental interests of the employer. Thus, an employer who wishes to summarily terminate an employee's employment must assess whether or not the reason for doing so is sufficiently serious and substantial to justify relying on it to terminate: section 31 of the Act

  • (4) In order to fulfill the requirements of section 33, an employer must show in any proceedings brought by an employee against him that he honestly and reasonably believed that the employee was guilty of misconduct equivalent to a fundamental breach of his contract of employment.

  • (5) The real reason for summarily dismissing the plaintiff from her employment was because she brought her husband to the MD's office and her husband behaved in an unruly manner. The plaintiff cannot be held responsible for the acts of another person.

  • (6) There is not an iota of evidence to support any of the alleged grounds for the summary termination of the plaintiffs employment; be it dishonesty or gross insubordination/insolence and gross misconduct or breach of trust/confidence.

  • (7) An employer cannot terminate the employment of an employee on one ground and seek to change the ground as the trial progresses: ( Sun International (Bahamas) Limited v. Kevin Williams Civil Appeal No. 20 of 1998) referred to.

Charles, J.
INTRODUCTION
1

The key issue to be determined in this action is whether the plaintiff (“Ms. Woodside”) was unfairly dismissed, as she alleges, or summarily dismissed, as her former employer, Lickety Split Ltd (“the defendant”) alleges.

BACKGROUND FACTS
2

The background facts are largely uncontroverted. To the extent that there is any departure from the agreed facts, then what is expressed must be taken as positive findings of fact made by me.

3

In or about April 1998, Ms. Woodside commenced employment with the defendant as a regular pantry worker. She was an industrious, reliable and honest worker. Her performance level was above average. It was therefore not surprising that she rose from a regular pantry worker to supervisor and eventually to manager. As manager, she earned a weekly wage of $376.00.

4

On or about 4 February 2014, Ms. Woodside was summoned to a meeting with the defendant's Vice President and Managing Director, Llewellyn Burrows (“Mr. Burrows”). During that meeting, certain personal matters arose regarding numerous harassing anonymous telephone calls that Mr. Burrows was receiving. Mr. Burrows suspected that the anonymous caller was Ms. Woodside's husband. He communicated his suspicion to her. Ms. Woodside then left the meeting and called her husband to pick her up. She disclosed to her husband what took place in the meeting. Her husband wanted to see Mr. Burrows so they arrived at Mr. Burrows' office. Her husband was loud and boisterous. As a result, Mr. Burrows asked them to leave his office. In the interim, Mr. Burrows continued his investigation into the harassing telephone calls. He had already made a report to the Wulff Road Police Station and the Fraud Department at Bahamas Telecommunications Company (“BTC”).

5

On or about 15 February 2014, Ms. Woodside proceeded on her previously approved vacation leave for two weeks. She was due to return to work on 1 March 2014.

6

On 28 February 2014, the defendant summarily terminated Ms. Woodside's employment. This was communicated to her in a termination letter dated 28 February 2014. The letter stipulated that the reason for summary dismissal was dishonesty. She was paid the sum of $7,000.00 as an ex-gratia payment for her services over the years as well as two weeks' vacation of $752.00.

7

By letter dated 7 April 2014, learned counsel for the defendant, Ms. Campbell wrote to Learned Counsel Mr. Ferguson who appeared for Ms. Woodside stating that Ms. Woodside's employment was terminated on the ground of gross insubordination/insolence and gross misconduct in accordance with s. 31(d) and (i) of the Employment Act, Ch. 321A of 2001 (“the Act”) and not for dishonesty.

8

On 30 April 2014, Ms. Woodside filed a Writ of Summons endorsed with a Statement of Claim against the defendant alleging that she was unfairly dismissed against her right not to be unfairly terminated. By a Re-Amended Writ of Summons filed on 23 November 2015, she alleged that she suffered loss and damage of $26,717.28 less 7,752.00 leaving a balance of $18,965.28.

9

At paragraph 5 of its Re-Amended Defence filed on 11 December 2015, the defendant stated:

“…The defendant again maintains that the plaintiff was summarily dismissed as she committed misconduct which constituted a fundamental breach of her contract of employment or acted in a manner repugnant to the fundamental interests of the defendant on the joint grounds that she was grossly insubordinate or insolent and exercised gross misconduct”

10

The parties are in disagreement as to whether Ms. Woodside was unfairly dismissed pursuant to section 34 of the Act or summarily dismissed pursuant to section 31 of the said Act.

THE LAW
UNFAIR DISMISSAL
11

Part IX of the Act deals with unfair dismissal. Section 34 provides that every employee shall have a right not to be unfairly dismissed by his employer, as provided in sections 35 to 40.

12

Section 35 states that “[S]ubject to sections 36 to 40, for the purposes of this Part, the question whether the dismissal of the employee was fair or unfair shall be determined in accordance with the substantial merits of the case.

13

The case of B.M.P. Limited d/b/a Crystal Palace Casino v. Yvette Ferguson IndTribApp App No. 116 of 2012 gives a broad overview to what may constitute unfair dismissal. The Court of Appeal held, among other things, that (i) the Employment Act does not contain an exhaustive list of instances of what could be considered to be unfair dismissal; (ii) sections 35 to 40 contain what may be regarded as “statutory unfair dismissal” and section 35 provides for the determination of the question whether the dismissal of an employee is fair or unfair.

14

At paragraph 36 of the judgment, Conteh JA stated:

“The expression “unfair dismissal” itself is not defined in the Act. What it provides for, in our view, is to itemize instances of what we can be called “statutory unfair dismissal” such as provided for in section 36 (dealing with dismissal for trade union membership and activities of an employee); section 37 (dealing with dismissal on ground of redundancy); and section 40 (dealing with dismissal in connection with lock-out, strike or other industrial action).

15

At page 12, paragraph 39, the learned justice continued:

“Section 35, in our view, is the touchstone for the determination of whether in any instance of the dismissal of an employee outside of the provisions of sections 36, 37, 38 and 40, is fair or unfair. AND THIS QUESTION SHALL BE DETERMINED IN ACCORDANCE WITH THE SUBSTANTIAL MERITS OF THE CASE. All sections 36 to 40 do is to categorize instances which the Legislature deemed to be unfair cases of dismissal, and s. 34 provides that every employee has the right not to be unfairly dismissed as provided for in those sections. We do not think it was intended to foreclose the categories of unfair dismissal. Given the heterogeneity of circumstances in the workplace that could lead to the dismissal of an employee, it would, we think, be rash to spell out in advance, by legislation, what is or is not unfair dismissal of an employee. Can it seriously be said that an employee who is dismissed by his employer for no reason other than his or her appearance will not found a claim for unfair dismissal because that instance is not listed in Sections 36, 37, 38 and 40 of the Act?” [Emphasis added]

SUMMARY DISMISSAL
16

Section 31 of the Act (Part VIII — Summary Dismissal) states that an employer may summarily dismiss an employee without pay or...

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