Atlantis Submarines Barbados Inc. v Dejean
| Jurisdiction | Barbados |
| Judge | King, J.A |
| Judgment Date | 30 July 2002 |
| Neutral Citation | BB 2002 CA 22 |
| Docket Number | Civil Appeal No 7 of 1999 |
| Court | Court of Appeal (Barbados) |
| Date | 30 July 2002 |
Court of Appeal
Chase, C.J. (Ag.); Waterman, J.A.; King, J.A. (Ag.)
Civil Appeal No 7 of 1999
Mr. Leroy Inniss, Q.C, with Mr. M. Lashley for the appellant.
Mr. John Connell, Q.C, with Miss M. Taitt and Mr. B. Taitt, for the respondent.
Employment law - Jurisdiction — Award of damages — High court — Unlawful dismissal — Whether the judge erred in fact and in law in awarding the respondent an increase of salary and retroactive pay when there was no evidence or legal basis to support such an award — Whether the Court of Appeal was competent — Finding the Court of Appeal could review the facts — Finding that the respondent had acted dishonourably and the appellant was justified in dismissing her from its service — Awarded damages ordered to be repaid.
King, J.A (AG.) This is an appeal from the decision of a learned trial Judge of the High Court in which the respondent was awarded damages and costs for unlawful dismissal by the appellant.
The appellant is principally engaged in the business of taking clients on diving trips off the west coast of Barbados on its submarine. These clients are made up of Barbadians, Hotel residents and Cruise ship passengers. Clients pay for the pleasure of the dive. Payment varies according to one's class or status. Cruise ship passengers and hotel residents pay the highest fare, locals pay another, travel agents pay another, and persons connected to the tourist industry pay another, what to our understanding, is the lowest. The fare structure ranges from $149.00 down to $29.00.
In addition to diving, the appellant maintains offices, the one relevant to this matter being a reservations office, with a shop selling curios and tourist oriented items.
The respondent was employed with the Company from its inception in 1986, first as a reservations clerk and later, for some years as Manager of the Reservations Office and the shop. It is to be assumed, that the appellant was satisfied with her performance to have promoted her to such an important position.
Her responsibilities were to manage a staff of clerks and cashiers, allocate a rota system of work, check stock and order supplies, make on the spot corrections of certain types of errors made by cashiers, check cash/cheques/credits cards, documents which allowed a reduced fee, make reconciliations, so that at the end of the day the money/money's worth she had reconciled with the various transactions carried out by her staff during the day. She was to report thereon and pay over her monies to the main office.
The evidence reveals that the respondent was called to a meeting with the General Manager and the Company's auditors and asked to explain certain irregularities. She was suspended and later dismissed on the grounds that the Company had lost confidence in her. The respondent claimed that she had satisfactorily explained the irregularities. The appellant's General Manager claimed she had not.
The letter of dismissal Exhibit “CD2” was in these terms:
11th June 1996
Dear Mrs. Dejean
During the period of your suspension, management carried out further investigations into the matter which we discussed last week. As a result of the findings the company has lost confidence in you and has no alternative but to determine your services with immediate effect. I enclose herewith a cheque for $4,304.37 made up as follows:–
Payment in lieu of holiday – 46 days due
Please return all property which you have belonging to Atlantic Submarines (Barbados) Inc at your earliest convenience.
Yours faithfully
RG Myers
Roseanne Myers
General Manager
Trial proceeded on an amended statement of claim, which unfortunately, is not included in the record. In the amended defence of 99-01-13 the appellant admitted or denied a number of matters, in particular at these paragraphs,
- The defendant denies Para 8C of the Amended Statement of Claim and states that the defendant provided non-contributory medical insurance for the plaintiff and the plaintiff would be reimbursed such sums paid for medical attention as was supported by bills claimed by the plaintiff. 10. The defendant denies Para 8(d) of the Amended Statement of Claim and states that it has in force a gain share incentive scheme which allows employees to share profits on condition that certain goals were met. The gain sharing was discretionary and paid as an incentive to persons who were employed by the defendant at the time of such payment as an incentive. No gain share was paid during the period January 1996 and up to the time of the determination of the plaintiff's services. 11. The defendant denies Para 8(e) of the Amended Statement of Claim and states that it was not a term of the plaintiff's contract that she would receive an 8% increase of her salary or any other per cent based on performance review and further states that an increase of salary granted to the plaintiff from time to time was at the sole discretion of the defendant and based on the performance review and assessment of the plaintiff's supervisor. 13. The defendant admits that the plaintiff would enjoy the use of a port pass allowing access to the inner area of the Bridgetown Port and access to any ship in the said port but this pass was for the purpose of carrying out her duties on behalf of the defendant. 15. The defendant denies that the plaintiff suffered any loss or damage and states that the plaintiff was paid all sums due and owing to her at the termination of her services. 16. Further the defendant states that the plaintiff was dismissed for misconduct.
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(1) Falsifying the defendant's records
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(2) Not accounting for or paying in to the defendant moneys received in the course of her employment on behalf of the defendant
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(3) Further and in the alternative failing to report the shortage of cash received on behalf of the defendant when she was well aware that such moneys were received and not accounted for.
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(4) Gross negligence in carrying out her duties as a supervisor.
The plaintiff sought and obtained further and better particulars.
The grounds of appeal, filed on 1999/06/01 were as follows:
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i. The learned trial judge erred in fact and law in awarding the respondent an increase of salary and retroactive pay when there was no evidence or legal basis to support such an award.
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ii. The learned trial judge erred in fact and in law in that he took into account irrelevant considerations and did not take into account relevant considerations.
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iii. The learned trial judge erred in law in that he did not properly assess the evidence and/or did not draw inferences which flowed naturally and logically from the evidence.
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iv. The learned trial judge erred in law in that he did not consider the evidence in support of the appellant's case especially with respect to the falsification of the defendant's records.
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v. The decision is against the weight of the evidence.
The defendant will seek the leave of the court to add to the grounds of appeal upon receipt of the judgment.
The appellant seeks the following relief:
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(a) That the learned trial judge's entire decision be reversed
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(b) Such further or other orders as the Court of Appeal may deem fit.
Appellant's counsel indicated that ground 1 would be argued on its own and grounds 2–5 would be argued together as they were interwoven.
Counsel's first contention, albeit brief, was important. It was that the learned trial judge had erred in dismissing the appellant's Counter Claim when there was no such claim before the court, it having been withdrawn on the second day of trial. That counter claim filed on 31/10/96 was as follows:
COUNTER CLAIM
17. The defendant repeats Paras 1 to 16 hereof and states that by reason of the matters set out in Para 16 therein the defendant has suffered loss and damage.
PARTICULARS
Moneys received by the plaintiff on behalf of the defendant but not paid to the defendant $31,354.00
AND THE DEFENDANT counterclaims the sum of $31,354.00 and interest at such rate as this Honourable Court thinks fit and costs.
On 13/1/99 the appellant/defendant filed an Amended Defence from which this counterclaim was omitted. This aspect according to counsel, was thus not before the court. There is substance in this contention
One system used in the appellant's business, which formed a basis of its case before the trial Judge was examined in depth by counsel, i.e. the voiding of transactions. He contended that this was the means by which the respondent acted as alleged in the particulars of the amended defence which led to her dismissal for misconduct for, on 3/1/96 the respondent voided 11 high price receipts and substituted them with 11 at a low price, which although the reservation list and the boarding list continued to reflect the same number of passengers, resulted in a substantial excess in cash. It was clear he said, that the respondent with her long years had recognized and exploited a loophole.
Counsel contended that -
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(a) the issues of 3/1/96 were highlighted but were part of a similar system used by the respondent on other days; to pull out high fee payers and substitute low fee payers, which would result in the reservation list and the boarding list remaining the same. The result of this behaviour unless explained, would result in cash overs which the respondent did not pay over to the appellant. When the auditors observed something, i.e. a lot voids, the respondent failed to give a satisfactory explanation but admitted she had not sold any tickets at $29.00 but made the changes so the accounts could balance;
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(b) according to the system as explained by both appellant and the respondent, where voids are made the appellant required the reason to be written on the back of the voiding ticket but this was not done by the respondent...
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