Chefette Restaurants Ltd v Harvey
| Jurisdiction | Barbados |
| Judge | Waterman, J.A. |
| Judgment Date | 20 April 2007 |
| Neutral Citation | BB 2007 CA 17 |
| Docket Number | Magisterial Appeal No. 8 of 2003 |
| Court | Court of Appeal (Barbados) |
| Date | 20 April 2007 |
Court of Appeal
Waterman, J.A.; Connell, J.A.; Moore, J.A.
Magisterial Appeal No. 8 of 2003
Mrs. Beverley Walrond, Q.C., in association with Miss Natasha Griffith for the appellant
Mr. Olson Alleyne for the respondent
Employment law - Dismissal — Wrongful dismissal — Damages — Pay in lieu of notice — Appellant had been assistant manager for 8 years — Whether summary dismissal for breach of procedure was warranted — No evidence of unsatisfactory conduct — Isolated act of misconduct — Disregard for an essential condition of the contract of service was not demonstrated — Respondent was entitled to six weeks notice or damages in accordance with the Severance Payments Act — Respondent awarded $12,512.50 damages.
This is an appeal by the appellant from a decision of the Magistrate of District “A”, Mr. Valton Bend, in which the Magistrate awarded the respondent six weeks' pay in lieu of notice and damages calculated under the Severance Payment Act (Cap. 355A) for wrongful dismissal. From that decision the appellant has appealed to the Court of Appeal on the grounds that the decision was against the weight of evidence and erroneous in point of law.
The respondent had been employed by the appellant, Chefette Restaurants, as an Assistant Restaurant Manager from 4 August 1993. On Monday 6 March 2001 at approximately 4.00 p.m. at shift change there were cashiers in the office at the company's Lower Broad Street Branch counting their cash for the evening shift. One of the day cashiers who was about to finish her morning shift was also in the office. This cashier had made an error and needed a receipt to be sent through with her error, so that it could be clearly seen where she had made the error.
At the time when this incident occurred, the respondent was engaged in collecting the takings for the day, a very large sum of money which consisted of the deposit, the secondary deposit of foreign currency and cheques. She was also engaged in verifying the manager's float, which alone was $6,000.00. Faced with the situation of responding to the cashier and securing the company's money she determined that the security of the money was her primary responsibility because if she had left the monies unattended, and at the end of her collecting, she did not realize a balance, the company's policy dictated that she as the manager on duty would not only have to give an account of what happened, but would have to repay all outstanding balances.
The respondent's evidence was that she decided to seek the assistance of one of the cashiers, Ms. Claudine Tull, who was on duty and had been employed with the company for more than twenty (20) years. Ms. Tull was considered by most of the senior management of the company to be a responsible and trustworthy person. The respondent gave evidence that she called Ms. Tull to her desk and wrote her manager's code on a slip of paper. This was done to prevent any one from overhearing. The respondent passed it to Ms. Tull who proceeded to the front counter to retrieve the receipt. Upon doing so she came back to the respondent in the office, returned the paper with the code and the respondent placed the paper in her pocket. At this time Ms. Tull from her evidence told the respondent that the technician, Errol Walcott, had seen her retrieve the receipt and then proceeded to question her about how she knew the code and whether she had retrieved receipts previously. Ms. Tull gave evidence that she told Mr. Walcott it was the first time and she did it only because the respondent was busy collecting the takings for the day and could not possibly move to go to the front counter leaving the money unattended in the office.
The respondent's further evidence was that she continued to balance the day's taking and while doing so she received a telephone call from her Operations Manager, Mr. Terrel Hunte, informing her that it had been brought to his attention that she had given her code to a cashier to retrieve a receipt. Mr. Hunte asked if that was so, and if so, why? The respondent in turn told Mr. Hunte yes, it was so, but that she had only done it because she had all the money around her and did not want to leave it unattended in the office. Mr. Hunte gave evidence that he asked the respondent if she knew it was a no no, to give the code to anyone, not even to her colleagues; the respondent said yes, and tried to explain the situation, but Mr. Hunte insisted it should not happen.
The respondent's evidence was that Mr. Hunte told her that he would get back to her. She asked him if in ten (10) minutes, he said he would get back to her. The respondent completed her tasks for the day and departed at approximately 8.00 p.m. without hearing from Mr. Hunte.
The following day 7 March 2001 the respondent was scheduled to work at 5.00 p.m., but received a call from Mr. Hunte who informed her about a meeting at 2.00 p.m. at Head Office. She attended the meeting with the Manager of Operations, Ms. Marva Niles and her Operations Manager, Mr. Hunte. This meeting recalled the conversation of the previous day which she had with Mr. Hunte. However, at the meeting the respondent said that Mr. Hunte omitted the part about him giving the respondent his code to use previously.
Mr. Hunte's evidence was that at the meeting the respondent did not even sound remorseful. The code was changed by the company. The respondent, he said, could have asked everyone to leave the office, lock the door and then proceed to the front counter to retrieve the receipt. Mr. Hunte said that Ms. Tull having the code would have been able to do voids which are normally only signed by the Manager.
The respondent's evidence was that what she had said to Mr. Hunte about the incident at the meeting was totally misinterpreted by him and therefore what he told management was not a true representation of what she had said or how she had felt. She was verbally told at the meeting that her services were terminated.
The Magistrate's Reasons for Decision
The Magistrate's reasons for decision were as follows:
“The Court noted that the plaintiff was dealing with large sums of money. While it was the practice that managers should not give out their codes the Court found that she was not willfully flouting the company's policy, but was acting in the interest of the company. The Court found as a result that the plaintiff was protecting the assets of the defendant. It interpreted the deviation from the norm as mild and not substantial. In addition, the Court concluded that the Operations Manager's findings that the plaintiff was not remorseful was unreasonable in the circumstances. He gave a reason that she would do it again as the basis for her dismissal. That in the Court's view was intended having regard to the circumstances of the case.
The Court found that the plaintiff was wrongfully dismissed. It also found that the defendant did not discharge its burden in showing that there was just cause. It accordingly awarded damages in the sum claimed plus costs.”
The issue to be determined in this appeal is whether the breach by the respondent of the company's security and policy by giving out her manager's code to a cashier was sufficient to warrant summary dismissal. Put another way, was the refusal of the respondent to carry out a policy or procedure of the company, namely, not to disclose her code, well known by her, sufficient to justify summary dismissal.
On appeal, Mrs. Beverley Walrond Q.C. for the appellant, submitted that the instant case falls within the category of cases where the admitted action of the employee was such as to interfere with and to prejudice the safe and proper conduct of the company's business, and, therefore to justify immediate dismissal. The onus, she contended, was on the employer in such cases.
Mrs. Walrond places great store by Laws v. London Chronicle (Indicator Newspapers) Ltd. [1959] 2 All E.R. 285. In Laws case an employee of the defendant company who had been engaged as an advertisement representative only three weeks previously, was told by the managing director not to leave a room. Despite the directive, she followed the advertising manager, her immediate supervisor, out of the room and out of loyalty to him. She was summarily dismissed. The English Court of Appeal held that she had been wrongfully dismissed.
Lord Evershed M.R. at p. 287, after citing Turner v. Mason and passages from 25 Halsbury's Laws of England (3'd Edit.) said:
“To my mind, the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that willful disobedience of an order will justify summary dismissal, since willful disobedience of a lawful and reasonable order shows a disregard — a complete disregard — of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally.”
And later at p.288, Lord Evershed in explaining whether one act of disobedience could justify summary dismissal, said:
“I think that it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think … that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in...
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