Alicia Cheltenham v Sandy Lane Hotel Company Ltd
| Jurisdiction | Barbados |
| Judge | Kathy-A. Mamhlin,Frederick Farde,Oclghton Marshall CMgr |
| Judgment Date | 07 February 2023 |
| Docket Number | NO: ERT/2017/233 |
| Court | Employment Rights Tribunal (Barbados) |
Kathy-A. Mamhlin, LLM, LL.B. (Hons.). FCIArb. Deputy Chairman
Frederick Farde, GCM Member
Oclghton Marshall CMgr, FCMI, CMC, FlC, Chartered MClPD. FGDip /Employment Law & Practice Member
NO: ERT/2017/233
EMPLOYMENT RIGHTS TRIBUNAL
The Claimant in person.
Mr. Michael Koclman of Dentons Delany, Attorneys-at-Law for the Respondent.
Alicia Cheltenham, unrepresented in these proceedings, was employed with the Respondent, Sandy Lane Hotel Co. Ltd., “a five-diamond resort”, as Compensation and Benefits Business Partner from April 6, 2009, to September 20, 2016. She alleged that on June 9, 2016, she sent an email to heads of department and coordinators “listing the criteria for the layoff process” with respect to temporary staff. She did not copy that email to Human Resources Manager Donna Harper-Nicholls, in breach of a directive that all emails sent from the Human Resources Department must be copied to Ms. Harper-Nicholls.
The Claimant was summoned to a meeting on July 20, 2016, and informed of a complaint made by Jo-Ann Roett, the Director of Finance, Risk and Compliance, in relation to that email. She was invited in writing to a disciplinary hearing on July 27, 2016, to answer the following charges, namely:
-
1. “that the Claimant's actions contravened Rules of the Game Section 22 “Gross negligence” in that she failed in her role as HRBP Compensation and Benefits by giving erroneous information to a head of department, and by copying said information to a junior member of staff thereby exposing the Hotel to damages.”
-
2. “[d]eliberately refusing to carry out instructions from an immediate supervisor or a more senior member of Management without proper reason”, by not copying the email to Ms. Harper-Nicholls in contravention of Rules or the Game Section 17.
The meeting was attended by the Respondent's Chief of Security, the Claimant, the Claimant's witness/notetaker and Ms. Harper-Nicholls. The disciplinary hearing concluded on August 19, 2016, with dismissal following on September 20,2016.
The Claimant submitted that the complaint that she disseminated erroneous information was inaccurate and that she had remitted the same email to heads of department for over four years. She also contended that no confidential information was contained in that email, that the junior staff member who was copied in the email had access to the same information in the normal course of her employment and that Ms. Harper-Nicholls was intimately involved in all “ interactions” leading up to the dissemination of the email and was therefore fully aware of its content.
As such, the Claimant contended that her dismissal was unfair and she sought relief in accordance with the provisions of the Employment Rights Act, 2012–9 (“the Act”).
The Respondent submitted that the Claimant was summarily dismissed for gross misconduct after a disciplinary hearing which complied with the Fourth Schedule to the Act.
The Respondent contended that the Claimant willfully disregarded a clear directive from Ms. Harper-Nicholls, when she sent out the email. Further, the Respondent submitted that the advice contained in that email was erroneous, “clearly false” and “incompetently given” and that the junior employee to whom it was copied was not required to receive information of such a sensitive nature. This, according to the Respondent, was a breach of the company's confidentiality policy. The Claimant's actions, the Respondent submitted, resulted in the destruction of the Respondent's trust and confidence in the Claimant.
The Respondent argued that the Claimant issued no apology or attempted in any way to show that she could be relied upon not to repeat such misconduct. The Respondent also argued that progressive discipline does not apply in the circumstances of this case.
The Tribunal heard the evidence of the Claimant and Ms. Haiper-Nicholls, each of whom filed a single witness statement.
The Respondent made an application to adduce fresh evidence, to call a new witness and to recall the Claimant at the close of the Claimant's case and after having completed its cross-examination of the Claimant.
The Respondent contended that it was not clear from the Claimant's witness statement that her case was that she had, throughout the years, regularly sent an email in the same terms as the email which led to her dismissal.
The Respondent submitted that the Claimant's contention had implications for whether it was reasonable for the Respondent to dismiss the Claimant or not. Further, since Ms. Harper-Nicholls could only give evidence as to what obtained when she joined the company (approximately one year before the Claimant was terminated), the Respondent desired to adduce evidence from its IT Manager to rebut the inference raised by the Claimant.
Specifically, the Respondent sought to introduce emails sent by the Claimant during her tenure containing the key words “severance” and “temporary employment”.
Counsel contended that the prejudice to the Respondent would be greater if the Respondent was unable to respond to the claim that (the Claimant was accustomed to send an email in the same form as that which resulted in her dismissal than would be the inconvenience of having to delay the trial. Delay, Counsel submitted, would be the only prejudice.
The Claimant opposed the application on the ground that the evidence which the Respondent sought to adduce would be prejudicial She contended that if allowed, the effect would be to further delay the matter, which had been adjourned on several previous occasions because of the Respondent's failure to appear. She argued also that the Respondent had enough time to present the evidence which it was now seeking to adduce. The Claimant proposed that if the application were allowed, certain conditions ought to be imposed, including that the search period be limited, that “lay off” be included in the key word search and, that the Chairman of the Tribunal be present during the extraction of those emails from the Respondent's email server.
The Tribunal is not constrained by the rules of evidence, and in feet, the Evidence Act, Chapter 121A of the Laws of Barbados docs not apply to hearings before this body. That is not to say, however, that the Tribunal should completely disregard recognised rules of procedure and evidence.
Sir Ralph Kilner-Brown in Snowball v. Gardner Merchant Ltd. [1987] ICR 719 at 722 stated as follows:
“In spite of the wide discretion which Parliament has entrusted to an [employment] Tribunal, it must not, however, be exercised in a capricious fashion. In particular, a Tribunal must not ignore nor totally disregard the well-established principles of law with reference to the admissibility of evidence.”
It is within the discretion of the Tribunal to allow a party to introduce relevant evidence, even at the stage at which the Respondent sought to do so, if, in the opinion of the Tribunal, that evidence would assist it in fairly determining the issues between the parties. The discretion is exercisable even if that evidence was not led earlier by reason of inadvertence or carelessness on the part of counsel for the party seeking to adduce the new evidence, “ for the laxity of counsel should not, generally, redound to the detriment of the client.” 1
Counsel argued that the Claimant's case appeared at the start of the hearing to be straightforward-that the email which led to her dismissal was a routine email. He stated that it was not clear from the Claimant's witness statement whether it was her practice to submit twice yearly emails in the terms of that which led to her dismissal. Consequently, justice required that all relevant evidence be given just weight.
At paragraph 1 of her witness statement the Claimant states unequivocally that “the charges of erroneous Information was inaccurate as I would have performed this task for over 4 years or more remitting the said email to the Heads of Department”
Further, at paragraph 3 of that witness statement the Claimant states as follows:
“In April 2016 and (sic) I would have commenced communication to heads of departments and coordinators on the temporary staff within the company advising them on the employment period that is if they were there for 2 years or less, and the implications if they wanted to just end the contract of the employees over 2 years. This is a practice I did every year April and in” (sic).
The last sentence appeared to have been truncated and, in response to a question from the Tribunal, the Claimant clarified that the process was done every April and “every end of year.”
Even though the last sentence of paragraph 3 was incomplete, it ought to have been sufficiently clear to the Respondent from the Claimant's witness statement that her argument always was that the email for which she was dismissed was not an anomaly.
In Ladd v. Marshall [1954] 3 All ER 745 at 748, Denning LJ stated as follows:
“ In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible,”
In the instant case, the evidence which the Respondent sought to adduce was at all times within its exclusive control, custody and possession The Respondent,...
To continue reading
Request your trial