Anne-Marie Holder v AVG Investments Inc.
| Jurisdiction | Barbados |
| Judgment Date | 25 September 2015 |
| Date | 25 September 2015 |
| Docket Number | NO. ERT/2014/002 |
| Court | Employment Rights Tribunal (Barbados) |
Employment Rights Tribunal
NO. ERT/2014/002
TRIBUNAL: Miss Kathy-A. Hamblin, Mr. Ulric SealyandMr. John Williams
Ms. Anne-Marie Holder, Claimant in person
Ms. Zarina Khan for the Respondent
The Claimant, Anne-Marie Holder of Four Hill, St. Peter, complained that on May 28, 2013, she was unfairly dismissed by the Respondent, AVG Investments Inc., a limited liability company whose registered office is at Mount Hill, St. George. The Claimant stated that she was employed as a gas attendant at a gross weekly wage of $250.00 from March 16, 2011, until her dismissal. Her net wages amounted to $224.75 per week. She did not receive any other benefits. The Claimant was stationed at Sol Service Station, Mile-and-A-Quarter, St. Peter. Her duties included dispensing gas, diesel, bottled gas and ice and “helping out in any way possible [with] customer service”.
The Claimant alleged that on May 28, 2013, she went into the service station near the end of her shift to “ pay monies on a pump”. She was approached by the husband of Ms. Anne Simpson, a director of the Respondent Company, and summoned to the office. In the presence of the management team, the Claimant was informed by Mr. Gregg Simpson, another director, that the Respondent had investigated a missing bottle of gas and had concluded that the Claimant was involved in the theft of that bottle of gas. The Claimant further stated that she was informed by Mr. Simpson that he would terminate her services. She alleged that Mr. Simpson asked whether she had anything to say, to which she responded in the negative. She was then handed a termination letter. The Claimant denied any involvement in the theft of bottled gas.
This matter was commenced by complaint made to the Chief Labour Officer by the Claimant on May 29, 2013 and July 8, 2013. The Chief Labour Officer certified by letter dated July 22, 2013 that efforts at achieving an amicable resolution of the matter were unsuccessful, and the matter was consequently referred to this Tribunal pursuant to section 43 (2) of the Employment Rights Act, 2012 (“the Act”) for hearing and determination.
The Claimant filed a witness statement dated July 2, 2014 and another statement dated July 18, 2014, both setting out substantially the same facts. The Respondent filed a single witness statement, that of Ms. Anne Simpson on November 28, 2014, together with a document titled “Bottle Gas Reconciliation-April, 2013 (Ms. Holder's Shifts)”, a copy of the termination letter dated May 28, 2013, the National Insurance Office's Termination of Services/Lay-off Certificate and the employment offer letter dated March 16, 2011, from the Respondent to the Claimant.
The issue for determination by the Tribunal was whether the Claimant was unfairly dismissed by the Respondent.
The claim fails if the Respondent shows:
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i) The reason for dismissing the Claimant;
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ii) That the reason falls within Section 29 (2) of the Act, or alternatively, is some other substantial reason sufficient to justify dismissal;
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iii) That the Respondent acted reasonably in treating the reason given for dismissing the Claimant as a sufficient reason for terminating her services; and
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iv) That the Respondent complied with the procedural requirements set out at Part A of the Fourth Schedule.
If the Respondent acted unreasonably in treating the reason given for dismissing the Claimant as sufficient reason for dismissal, or failed to comply with the procedural requirements set out in the Fourth Schedule, then the claim succeeds and the Claimant is entitled to one of three remedies: reinstatement if that remedy is appropriate in the circumstances and, if reinstatement is not appropriate, then the Tribunal may consider an order for re-engagement. If neither reinstatement nor re-engagement is practical, the Tribunal shall award compensation for unfair dismissal.
There was no dispute that the employment contract was terminated by the Respondent and it was therefore for the Respondent to show, pursuant to Section 29 of the Act, the reason for the dismissal and that that reason was potentially fair.
The matter commenced on June 17, 2015, on which date counsel for the Respondent sought an adjournment on the ground that she had only recently been retained by the Respondent. She also informed the Tribunal that her recent information was that the arrest of the Claimant for theft of bottled gas was imminent.
On September 10, 2015, counsel for the Respondent submitted in limine that the complaint was brought well outside the three-month limitation period set out at Section 32 (2) (a) of the Act. She contended that the effective date of dismissal was May 28, 2013 and the complaint was not filed until 2014. She therefore submitted that the matter was not properly before the Tribunal.
The Tribunal ruled that the matter would proceed, relying in support of its decision on Section 8 (3) of the Act, which stipulates that “[a] complaint shall be taken to have been made to the Tribunal on the date that it is presented to the Chief Labour Officer pursuant to section 42.” The Claimant first complained to the Chief Labour Officer on May 29, 2013, one day after her dismissal, and again on July 8, 2013. Although the reason for dual complaints to the Chief Labour Officer is unclear, each complaint was filed well within the statutory three-month limitation period.
Ms. Anne Simpson, the sole witness for the Respondent, testified that on April 25, 2013, she discovered certain irregularities regarding the previous day's sales of bottled gas. She observed that extra duplicate receipts had been made and placed among the duplicate receipts for bottled gas sales. She pointed out that each receipt for bottled gas had a unique transaction number and that there were two duplicates for certain transactions, both copies bearing the same transaction number. Each receipt was for the sum of $39.85.
Ms. Simpson explained that the procedure in place for the sale of bottled gas was that on payment the customer was issued with two receipts-an original and a duplicate. The customer retains the original receipt and the gas attendant retains the duplicate receipt once the customer takes delivery of the bottled gas. Ms. Simpson also stated that under no circumstances, if ordinary company procedure was followed, should multiple duplicate receipts have been provided for a single transaction. She stated further that duplicate receipts could not be accidentally generated and that one would have to intentionally go back into the system in order to print additional duplicate receipts.
Ms. Simpson stated that there were 2 shifts on duty on April 24, 2013, with the Claimant working the first shift. Ms. Simpson's records showed that 6 bottles of gas went “missing” between the two shifts. She exhibited three duplicated receipts and stated that three receipts were “short” or missing. Ms. Simpson further testified that once she discovered duplicate receipts for April 24, 2013, she reviewed bottled gas sales for other dates to see if she “picked up a trend”. Her findings prompted her to call a meeting with each individual on whose shift the discrepancies occurred, including the Claimant.
Ms. Simpson also stated that she met with the Claimant on April 25, 2013, and at that meeting she showed the Claimant the records for April 24, 2013, as well as any available records for other shifts for that week. Ms. Simpson testified that when asked for an explanation, the Claimant offered none. According to Ms. Simpson, the Claimant denied knowledge of any bottled gas that had not been paid for. The Claimant did not question the accuracy of the shift report.
The witness further testified that between the April 25, 2013, meeting and the Claimant's termination on May 28, 2013, she did additional reconciliation for the month of April, 2013, which showed a pattern of duplication and inconsistencies. She subsequently filed a report with District “E” police station, and the matter was referred to the Fraud Department.
Under cross-examination by the Claimant, the witness stated that she could not recall the Claimant telling her that it was possible for customers to mix up empty gas bottles with full bottles.
In response to questions posed to her by the Tribunal, Ms. Simpson stated that at least 2 gas attendants worked each shift and that more than one person transacted gas sales on each shift. She further stated that receipts for bottled gas sales were generated by the cashier at all times and that the Claimant did not operate the cash register.
Ms. Simpson informed the Tribunal that as part of her investigations, she undertook a manual count of empty and full gas bottles...
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