Debra Brathwaite v First Citizens Bank (Barbados) Ltd
| Jurisdiction | Barbados |
| Judge | Christopher Blackman,Ulric Sealy,John Williams |
| Judgment Date | 30 July 2019 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: ERT/2018/012 |
EMPLOYMENT RIGHTS TRIBUNAL
Christopher Blackman Esq, GCM; Q.C Chairman
Ulric Sealy, Esq, SCM Member
John Williams, Esq Member
Case: ERT/2018/012
Mr. Elsworth Young for the Claimant
Mr. Michael Koeiman, Attorney-at-Law – Clarke, Gittens, Farmer for the Respondent
. At the close of the hearing on July 30, 2019 the Tribunal held that Debra Brathwaite the claimant had been unfairly dismissed by First Citizens Bank Barbados Limited (hereinafter FCB), the respondent on February 8, 2016. We said that we would give reasons for our decision and the determination of the award at a later date. This we now do.
. The witness statement of the claimant and the evidence of the claimant given at the hearing elicited by questioning from her representative, Mr. Elsworth Young as well as the several exhibits and material provided by the respondent, are relied on for the factual matrix of this matter.
. Ms. Brathwaite was employed by the Barbados Mutual Life Assurance Society (BMLAS) on June 16, 1987 as a cashier/customer service representative. In March 1997 she was transferred to the Mutual Bank of the Caribbean, a wholly owned subsidiary of BMLAS. Mutual Bank was later purchased by Butterfield Bank, and sometime in 2001, FCB became the owner of the bank. The claimant's continuous employment was preserved throughout the foregoing transactions, and by 2001 when FCB took over, her responsibilities had changed to Foreign Business/Term Deposit Loan Clerk.
. Ms. Brathwaite maintained three accounts at FCB:
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(i) A current account 50000770002, to which her salary was lodged.
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(ii) A current account 50094500002 and
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(iii) A savings account 10000199433.
. The claimant who had become a settlement officer in 2008, was requested to act as a Senior Settlement Officer in June/July 2013, and this position had an increase in salary of $457.84. Ms. Brathwaite in July 2013 set in place an automatic transfer of $500.00 from the current account 50000770002 to her savings account 10000199433 to facilitate payment of her fees at University of The West Indies, Cave Hill Campus.
. In July 2015, when the acting appointment of Senior Settlement officer came to an end, the claimant cancelled the automatic transfer of $500.00.
. On August 4, 2015 Charles Gill of the Operations Risk Department of FCB held a meeting with the claimant to enquire about the automatic transfer and as to her awareness of the bank's policy governing employees processing transactions to their own accounts. Ms. Brathwaite advised that she was not aware of the bank's policy. Mr. Gill undertook to provide a report of the meeting, but never did so.
. It is common ground that in 2013, FCB's systems were unable to detect a transaction such as that initiated by the claimant but by 2015 the system had been updated and as a result, had “caught” the cancellation.
. Following the meeting with Mr. Gill in August, 2015 a number of meetings were called by senior personnel of FCB, variously described as Investigative or Disciplinary. The first such meeting held on October 5, 2015, called an Investigative Committee focused on the circumstances around the closure of the auto transfer on the account. The persons attending that meeting, were Avril Husbands, Beverley Norville and Nicole Harris who represented the respondent and the claimant with two union representatives.
. By letter dated November 11, 2015 the claimant was requested to attend a Disciplinary Hearing on November 17, 2015 and to respond to the following charges:
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1. That in July 2013, while in the position of Senior Settlement Officer (ag.) you logged into Phoenix, set up and initiated automatic transfers (standing orders) for the recurring sum of BDS$500.00 from your Account# 50000770002 to your Savings Account # 10000199433.
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2. That on July 16, 2015 you again logged into Phoenix and cancelled said Standing Order.
. The persons attending the meeting on November 17, 2015 other than the claimant and two union representatives, were Avril Husbands, Beverley Norville, Nicole Harris, Jacqueline Browne, Sonia Squires and Charles Gill. The claimant in her own words, pleaded guilty to the charges detailed in the letter of November 11, and further advised that since the Investigative Meeting of October 5, 2015 she had realised that her earlier actions were wrong. She apologised to the panel for the breach but however asserted that there was no attempt to defraud the bank.
. On December 11, 2015 a meeting described as Investigative was held which considered the type of Standing Order used by the claimant to effect the transfer, and the dating thereof. On December 11, the claimant was on holiday and there is no evidence that she was told of the meeting. The meeting proceeded in her absence, with those in attendance being the six persons shown in the preceding paragraph as well as Celia Cadogan and Marion Cordice, officers of FCB and Dwayne Durant, BWU Union representative. The meeting focused on the dates on the standing order and the role of Ms. Cordice in witnessing the signature of the claimant.
. There were two further hearings, described as Disciplinary Hearings on December 30, 2015 and February 8, 2016 attended by Avril Husbands, Nicole Harris, Jacqueline Browne, Sonia Squires and Charles Gill, along with the claimant and a union representative. At the December 30 th meeting, Ms. Husbands said the matter had been fully investigated and it had reached decision stage. Ms. Husbands also stated that FCB felt that it could no longer depend on her to follow its procedures. On February 8, Ms. Husbands reiterated her remarks of December 30 th and advised that the decision had been taken to terminate her employment, with immediate effect. The sum of $3,439.90, net of statutory deductions, representing amounts due for outstanding vacation, overtime and salary for 8 days of February, 2016 was paid to the claimant at the time of her dismissal.
. Mr. Michael Koeiman Counsel for FCB, sought in cross-examination of the claimant to focus on the issues relating to dates on the standing orders as discussed in paragraph 12 above as material to the charge that the claimant had acted fraudulently. The Chairman of the Tribunal disallowed this as the claimant had never been afforded an opportunity to consider this issue, and that moreover, those allegations were never reduced to writing as in the case of the transfers as shown at paragraph 10 above. It is instructive to note the comment in the headnote in Ramphal v. Department for Transport [2015] UKEAT/0352/14/DA.
“ A Claimant facing disciplinary charges and a dismissal procedure …..should be given notice of any changes in the case he has to meet so that he can deal with them.”
. Mr. Koeiman called Ms. Sasha Martin as the sole witness for the Respondent. Ms. Martin said she joined FCB in 2017 and said her knowledge of matters relating to the claimant were what she had read on the files. The Tribunal held that her evidence was of no assistance as the claimant's representative could not cross-examine her as to any of the meetings held in 2015 and 2016. In response to a question from the panel, Counsel for FCB advised that most of the several participants in the Hearings, were no longer employed by FCB, and so unavailable to give evidence in the matter. It should be noted that at the Case Management Conference which preceded the hearing, enquiries were made whether other witnesses were available for the respondent, and directions given as to what should be done, if it was intended to file a further witness statement.
. Following the ruling as to the inadmissibility of Ms. Martin's evidence, Counsel for the respondent closed its case.
. Section 27(1) of the Employment Rights Act, 2012–9, (the Act) states that an employee has the right not to be unfairly dismissed by his (her) employer. Section 29(5) further provides that an employer is not entitled to dismiss an employee for any reason related to …(b) the conduct of the employee, without informing the employee of the accusation against him and giving him an opportunity to state his case, subject to the Standard Disciplinary Procedures and the Modified Disciplinary Procedures set out in Parts B and C,...
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