Chefette Restaurants Ltd v Harris
| Jurisdiction | Barbados |
| Judge | Burgess JA |
| Judgment Date | 23 August 2017 |
| Neutral Citation | BB 2017 CA 13 |
| Docket Number | Civil Appeal No. 11 of 2016 |
| Court | Court of Appeal (Barbados) |
| Date | 23 August 2017 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Sandra P. Mason, The Hon. Andrew D. Burgess and The Hon. Kaye C. Goodridge, Justices of Appeal
Civil Appeal No. 11 of 2016
Ms. Esther Obiora Arthur for the Appellant
Mr. Edmund Hinkson for the Respondent
Iceland Frozen Foods Limited v. Jones [1983] I.C.R. 17 — British Home Stores Limited v. Burchell [1978] IRLR 379 — Abernethy v. Mott, Hay and Anderson [1974] I.R.L.R. 213 — W Devis & Sons Ltd. v. Atkins [1977] 3 All E.R. 40 — West Midlands Co-Operative Society Ltd. v. Tipton [1986] 1 All E.R. 513 — Trimart v. Glenda Knight Civil Appeal No. 9 of 2014 — E. Phil and Sons A/S (Denmark) v. Brondum A/S (Denmark) Civil Appeal No. 24 of 2012 — Whitbread plc (trading as Whitbread Medway Inns) v. Hall [2001] I.C.R. 699 — Wood v. Caribbean Label Crafts Ltd. (unreported) Magisterial Appeal No. 11 of 201 (16 July 2003)
Sections 6, 27(1), 27(3); 29(1) —29(5) and 48 of the Employment Rights Act, 2012 of Barbados —Part A and B of the Fourth Schedule of the Employment Rights Act, 2012 of Barbados —Section 98(4) of the Employment Rights Act, 1996 of United Kingdom —Section 5(1) of the Holidays with Pay Act, Cap. 328
Employment Law - Dismissal — Appeal against the decision of the Employment Rights Tribunal — Whether the Employment Rights Tribunal correctly interpreted section 29 of the Employment Rights Act of Barbados where the Tribunal found that the Appellant had not adhered to the steps to dismiss the employee under Employment Rights Act, 2012 — Unfair dismissal — Fairness of dismissal — Whether the Respondent was unfairly dismissed where the Appellant has failed to adhere to the rules set out in Part A of the Fourth Schedule of the Employment Rights Act and the reason provided for the Respondent's dismissal was insufficient — Procedure to follow to dismiss an employee and calculation of entitlement under the Employment Rights Act, 2012 — Whether the Employment Rights Tribunal correctly calculated the compensation awarded to the Respondent where the Respondent had been paid monies in lieu of notice — Appeal dismissed with costs — Finding that the monies paid in lieu of notice should be deducted from the settlement
This is an appeal against the decision of the Employment Rights Tribunal (the ERT or the tribunal), established under section 6 of the Employment Rights Act, 2012 (the ERA or the Act), that the respondent, Mr. Orlando Harris (Mr. Harris), was unfairly dismissed from his employment by his employer, the appellant, Chefette Restaurants Limited (Chefette). The appeal is also against the decision of the ERT that Mr. Harris was entitled to an award of compensation in the sum of $106,630.01 to be paid by Chefette.
Of particular note is the fact that this appeal is the first under the ERA to this Court on the right of an employee not to be unfairly dismissed and that of an employer to dismiss an employee fairly. In deciding this appeal, therefore, it behoves this Court to be aware of the importance of interpreting the relevant provisions of the Act to give guidance on how the ERT should approach those provisions; guidance on how an employer should act so as to be regarded as being reasonable and fair; and, guidance on how the disciplinary procedures established by the Act should be operated.
With this mission firmly in mind, we begin by outlining the factual background to this case.
Chefette is a major fast food chain in Barbados. On 10 January 2000, Mr. Harris entered the employment of that company as an assistant manager at their branch located at National Heroes Square, Bridgetown. Mr. Harris remained in the employ of Chefette until he was dismissed on 13 January 2014. At the time of his dismissal, he earned a gross monthly salary of $4,200.00.
At the commencement of his recruitment by Chefette, Mr. Harris participated in a six months mandatory orientation for managers, where he was trained in the daily operations of the restaurant. As part of that training, Mr. Harris was taught the following cash handling procedures:
“i. Cashiers are allowed to cash a cheque for employees on the same or similar category but are not allowed to cash the Respondent's cheque made out to a manager, without permission from the Manager on Duty (the “Manager”).
ii. If the Manager wants to cash a cheque issued by the Respondent, he would pass the cheque to the cashier during the balancing of the intake.
iii. When the Manager is reconciling the Takings at the end of the shift he would balance all monies e.g. cheques, credit or debit slips, foreign currency and ensure that all information matches with the Micros cash register report for the shift.
iv. The Manager must verify that the information on the front and back of the cheque is correct.
v. It is the Manager's responsibility to write up the Manager's Daily Report with the denominations of the sales.
vi. The Manager then writes up a Deposit Slip for the bank which must correspond with the Takings documented on the Daily Report.
vii. The Manager's signature must be appended to the Daily Report as well as the Deposit Slip for the bank.
viii. The day's Takings from both day and night shifts are sent off with the Security Company by the night shift manager.”
On 27 February 2012, Mr. Harris received further training in respect of the updated policies and procedures relating to cash handling. That training was conducted at Chefette's Black Rock branch by Ms. Sherry-Ann Greenidge, Human Resources Officer for Chefette.
On the occasion of that training, Mr. Harris was presented with a copy of a “Cash Handling Manual” issued by Chefette (the Manual). On that occasion also, Mr. Harris was supplied with a Memorandum of Agreement between Chefette and the Barbados Workers Union entitled “Conditions and Terms of Employment 2010–2013” which contained a “Code of Discipline” (the Code). The Code set out the employee's punishment for first, second and third time offences. It reads in its relevant parts as follows:
| Offence | 1 st Offence | 2 nd Offence | 3 rd Offence | |
| 10 | Negligence, incompetence or carelessness in performance of duty. Loafing on the job or wandering off without permission. | Warning | Suspension | Dismissal |
| 11 | Negligence or carelessness which caused or might have caused injury to a customer or employee or negligence or carelessness involving a product served by the restaurant or to the provision, equipment or property of the restaurant; or to the business of the restaurant. | Dismissal |
During the course of his 14 years of employment with Chefette, Mr. Harris received several awards. These include awards for perfect attendance, assistant manager of the year, a Group Managers award, recommendations from Ms. Farrell, a former Manager and from Mr. Haloute, the owner of Chefette, and a cash award.
On the negative side, Mr. Harris received a warning letter as a result of a complaint made against him by a customer. Of this, Mr. Harris stated that no action was taken against him because it was determined that he was not at fault. In addition, Mr. Harris, along with all other managers, received a warning while he was working at the Broad Street Branch, Bridgetown because the storeroom door was left unlocked.
Mr. Harris' employment with Chefette came to an end when he was handed a letter dated 27 January 2014, informing him that his employment was terminated effective 13 January 2014. The reason given in the letter for his dismissal was his “failing to follow the Company's cash handling procedures” in relation to an incident which is described in detail in the succeeding paragraph of this judgment. Enclosed in the letter were a termination of services certificate, a certificate of employment record, a cheque for two months' payment in lieu of notice, and a payment for any leave entitlement due.
The incident which led to Mr. Harris' dismissal concerned a cheque dated 9 September 2013 issued to Ms. Donnalyn Ward, a manager at Chefette, (Ms. Ward), in the sum of $40.00. That sum was payment for an “audit”, that is, for Ms. Ward visiting a Chefette restaurant branch to verify that Chefette's operation standards and procedures at that branch were being adhered to.
Sometime around mid-September that same year, Ms. Ward called Ms. Junette Knight, Operations Assistant at Chefette, (Ms. Knight), and subsequently sent an email to her, Ms. Knight, indicating that she, Ms. Ward, had not received any payment for the audit which she had done on 2 August 2013. Ms. Ward requested that she, Ms. Knight, confirm whether a cheque was sent out for her, Ms. Ward, for that period.
On 10 October 2013, Ms. Knight sent out an email to all Managers, Assistant Managers and to “Chef Foods” management enquiring about a missing envelope. The email read as follows:
“Attention: All Branches & Chef Foods,
We are asking everyone, including Chef Foods to assist us in looking for a missing envelope addressed to Donnalyn Ward.
This envelope would have been sent after September 9 th 20113 (sic).
Kindly do a check and reply to this e-mail of your findings by tomorrow 12:00 noon.
Your cooperation in this matter is greatly appreciated.
Regards,
Junette.”
The enquiry proved unsuccessful. Consequently, on 4 October 2013, Ms. Knight reported the matter of the missing cheque to the Accounts Department (Accounts) at Chefette.
On 1 November 2013, an employee of Chefette in Accounts informed Ms. Knight that the Bank had indicated that the cheque was cashed and cleared on 16 September 2013. Ms. Knight was advised that she had to wait until the cheque was returned by the bank and for...
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