Carolyn Haynes v Barrbados Beach Club

JurisdictionBarbados
JudgeKathy-A. Hamblin,Beverley Beckles,Deighton Marshall.
Judgment Date29 March 2023
Docket NumberNO. ERT/2016/185
CourtEmployment Rights Tribunal (Barbados)
BETWEEN:
Carolyn Haynes
Claimant
and
Barrbados Beach Club
Respondent
TRINUNAL

Kathy-A. Hamblin, LLM, LL.B. (Hons), FCIArb Deputy Chairman

Beverley Beckles, M Sc, BSc. (Hons.), CertCIB Member

Deighton Marshall. CMgr, FCMl, CMC, FIC, Chartered MC1PD, PGDip /Employment Law & Practice Member

NO. ERT/2016/185

EMPLOYMENT RIGHTS TRIBUNAL

APPEARANCES

Mr. Keith M.C. Robertson, LL.B. Attorney-at-Law for the Claimant

Mr. R Alair Forde, LLM (Dist), LL.B. (Hons,), Attorney-at-Law for the Respondent

[1] INTRODUCTION
1.1

This matter has its genesis in an “ altercation” so styled by the Claimant, Carolyn Haynes, which occurred between Ms. Haynes and Rico Harte in the kitchen of the Barbados Beach Club on April 6, 2016. That incident resulted in the termination of the Claimant's services on April 8, 2016.

1.2

The Claimant had been employed by the Respondent as a porter/kitchen steward for 14 years. There was no documented history of misconduct on her part, nor of any disciplinary action having previously been taken against her. She alleged that the dismissal was unfair, in that the Respondent failed to comply with the procedural requirements of the Employment Rights Act, 2012–9 (“the Act”). The Respondent countered that despite there being procedural irregularities, the Respondent was entitled to dismiss the Claimant for fighting on the premises in breach of company policy.

1.3

The Claim Form was filed on August 15, 2016. The Respondent's Form 2 was not filed until six and a half years later on February 10, 2023. The Claimant supported her claim with her own witness statements filed on August 17, 2016, and January 27, 2023. The Respondent submitted witness statements of Michael Moore, Costella Cave and Antoinette Barnes all three dated April 6, 2016, Michael Coppin dated April 19, 2016, and Felix Broome dated April 25, 2016. It is worth noting that all of the Respondent's witness statements pre-dated the filing of the Claim Form. Counsel for both parlies presented written submissions for the consideration of the Tribunal at the conclusion of the hearing.

[2] THE ISSUES
2.1

The principal issues for determination by the Tribunal are first, whether the Claimant's dismissal was related to her conduct; secondly, if it was, whether the Respondent acted reasonably in treating that conduct as a sufficient reason for dismissing the Claimant; and lastly, whether the employer complied with the requirements of Parts A, B and C of the Fourth Schedule to the Act.

[3] THE LAW
3.1

The Tribunal must consider whether the principal reason for the dismissal falls within section 29 (2) of the Act or was some other substantial reason of a kind such as to justify the dismissal in accordance with section 29 (1) (b) and, if was, whether the employer followed a fair procedure before making the decision to dismiss the Claimant.

3.2

Section 29 of the Act provides that:

29, (I) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show

(a) the reason, or if more them one, the principal reason for the dismissal; and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) An employer shall have the right to dismiss an employee for a reason which falls within this subsection if it

(a) relates to the capability of the employee to perform work of the kind which he was employed by the employer to do;

(b) relates to the conduct of the employee.

(c) is that the employee war redundant, but subject to section 31; or

(d) is that the employee could not continue to work in the position which he held without contravention, either on his part or on that of his employer, of a duty or restriction imposed by law.

(3) In subsection (2) (a)capability” in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality.

(4) Where the employer has fulfilled the requirements of subsection (1), the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether

(a) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) the employer complied with the rules set out in Part A of the Fourth Schedule.

3.3

There is no dispute that there was an altercation between Harte and the Claimant on April 6, 2016. In her first witness statement, the Claimant contended that Harte struck her several times in the top of her head with a pan.

3.4

The Claimant alleged that Harte “push his hand in my face saying you ain ‘t know I would hit you in you face with this pan. I then push back my hand in his face and at that time is when he hit me in the top of my head about three times with the pan” The Claimant also contended that she did not retaliate because Harte “was much taller than I am I just took the lashes from him”. She stated that Antoinette Barnes, the pastry chef, “ came and pull me away and look me in the storeroom

3.6

The Tribunal is persuaded that the principal reason for the Claimant's dismissal related to her conduct, namely fighting on the Respondent's premises. Although she sought to portray the incident as a one-sided attack on her, in her oral testimony, the Claimant referred to the incident as a “fight”. That characterisation appears to be appropriate having regard to the fact that the Claimant had to be “ pulled away” from Harte and taken to a storeroom.

3.7

Whether the dismissal was fair or unfair depends on if the Respondent acted reasonably in treating the Claimant's role in the fight as a sufficient reason to dismiss her, and whether the Respondent complied with Part A of the Fourth Schedule to the Act.

[4] WAS THE DECISION TO DISMISS THE CLAIMANT REASONABLE?
4.1

The Tribunal considered whether:

  • i. the Respondent reasonably believed that the Claimant was guilty of misconduct and, if so, whether there were reasonable grounds upon which to base that belief;

  • ii. the Respondent had conducted a reasonable investigation into the Claimant's alleged misconduct when the Respondent made the decision to dismiss the Claimant; and

  • iii. a reasonable employer would have dismissed the Claimant in the circumstances of this case.

4.2

The Claimant's supervisor Chef Michael Moore, who was summoned to the kitchen while the dispute was still ongoing, stated that after the Claimant and Harte were parted by other employees, the Claimant started to carry on in the presence of the Duty Manager and myself’. He ordered her “to stop with that now, that guests can hear her from the Dining Room”. The Claimant responded, not with an apology to her superiors for raising her voice or for her role in the brawl, but with a threat to Harte, allegedly telling him: “ I going get you even if it is in town.” Chef Moore testified that the Claimant was “ all up in [Harte's] face” and “still going up in his face to fight”, even when they were in his office. In his opinion, the Claimant did not appear to be afraid of Harte.

4.3

The Tribunal is persuaded that a reasonable employer seised of that evidence would reasonably have believed that the Claimant was guilty of misconduct. The Tribunal is also persuaded that the Respondent had reasonable grounds upon which to base that belief.

4.4

The Respondent's rules and regulations, a copy of which the Respondent submitted to the Tribunal, provide for termination for “fighting or repeated quarrelling with other employees”. Those Rules were in effect at the date of the Claimant's dismissal, and she was aware of them. Even where the rules of the workplace provide for summary dismissal for fighting, the employer still has a duty to consider all relevant factors including the cause of the fight and the role each party played in either instigating or provoking that fight, before dismissing the employee or employees involved.

4.5

The Respondent argued that it carried out an investigation into the incident and, based on that investigation, the decision was made to dismiss the Claimant. Chef Moore testified that on the day of the incident, when he arrived at the kitchen, he “ could just hear mouths going.” He, along with Duty Manager Costella Cave, met with the Claimant and Harte into an office where the two employees gave their respective account of the incident. Harte stated, according to Chef Moore, that the Claimant “ pushed her hand in his face and touched him in his face and he retaliated and hit her.” The Claimant, meanwhile, told Chef Moore that Harte had struck her on the head with a plastic tray.

4.6

Chef Moore also stated that after he had suspended the two of them, he set up a meeting with other members of staff to hear their version of events. He was assisted by management in that investigation which lasted “45 minutes to an hour” and entailed interviewing “six or seven” witnesses.

4.7

Given the nature of the alleged misconduct, a reasonable investigation would have required not much more than obtaining statements from Harte, the Claimant and the employees who witnessed the incident. Accordingly, the Tribunal is of the view that the investigation conducted by Chef Moore was reasonable in all the circumstances.

4.8

In considering whether a reasonable employer would have dismissed the Claimant, the Tribunal weighed the mitigating and aggravating factors, The Claimant was employed by the Respondent for 14 years. According to the Claimant, her employment record was exemplary. Chef Moore concurred. The Respondent's managing director testified that the Claimant did a good job keeping the restaurant floor clean and a good job in the wash-up area. She was even given a “slight promotion” to head of the pot washing department. These are mitigating...

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