Harris v Chefette Restaurants Ltd
| Jurisdiction | Barbados |
| Judge | Hamblin |
| Judgment Date | 13 April 2016 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | ERT 65/2014 |
| Date | 13 April 2016 |
Employment Rights Tribunal
Hamblin, D.C.; Richards, M.; Sealy, M.
ERT 65/2014
The claimant in person
Mrs. Esther Obiora Arthur, Attorney-at-Law for the respondent
Employment Law - Whether the respondent's dismissal of the claimant was fair in all the circumstances — Reason for dismissal — Substantive fairness — Procedural fairness — Quantum.
Hamblin, Deputy Chairman:
For the reasons set out below, the unanimous decision of the Tribunal is that the claimant was unfairly dismissed by the respondent.
Orlando Ricardo Harris claimed that on January 27, 2014, he was unfairly dismissed by the respondent, Chefette Restaurants Limited, with whom he had been employed as an assistant manager since January 4, 2000.
The respondent alleged that the claimant was terminated in accordance with clause 11 of the respondent's Conditions and Terms of Employment, 2010–2013, for his failure to follow the cash handling procedures for the day-to-day running of the restaurant, among which were the following:
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i. “Cashiers are allowed to cash a cheque for employees on (sic) 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”).
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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;
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iii. The Manager must verify that the information on the front and back of the cheques is correct.” (See Witness Statement of Kenneth Harvey dated August 29, 2014).
The respondent also alleged that on September 14, 2013, a cheque made payable to Donnalyn Ward, another employee, (“the cheque”) was received, endorsed with the signature “O. Harris”, cashed and deposited during the shift managed by the claimant, who could lend no clarity to the matter when asked to do so by the respondent.
The complaint was supported by the claimant's witness statement dated July 10, 2014, and by a bundle of documents including the termination letter and several commendations which the claimant received during the course of his employment with the respondent.
The respondent also presented a bundle of documents which included witness statements of Mr. Harvey, its Administrative and Industrial Relations Manager, Maria Wallace, a cashier on duty on the claimant's September 14, 2013, shift, Sherry-Ann Greenidge, Human Resources Officer, and Junette Knight, Operations Assistant, as well as cheques numbers 00069196 and 00069201, both dated September 9, 2013, and drawn in favour of Donnalyn Ward and Orlando Harris, respectively. At its request, the Tribunal was provided with a complete copy of the respondent's Cash Handling Procedures Manual, 2012, (“the Manual”) in substitution for the extract from the Manual which was included in the respondent's bundle of documents.
Counsel for the respondent referred the Tribunal to the following authorities:
- British Home Stores Ltd. v. Burchell[1978] IRLR 377; 2. Clouston & Co., Limited v. Corry[1906] A.C. 122; 3. Gibson and others v. British Transport Docks Board[1982] IRLR 221. 4. Iceland Frozen Foods Ltd. v. Jones[1983] ICR 17. 5. Halsbury's Laws of England, 4th Edition Reissue, Vol. 16 at paragraphs 325 and 335; and 6. Halsbury's Laws of England, 5th Edition, Vol. 40 at paragraph 628.
The Tribunal also considered the following cases:
- X v. Ministry of Defence[2015] NICA 44; 2. Rogan v. South Eastern Health and Social Care Trust[2009] NICA 47; 3. Orr v. Milton Keynes[2011] ICR 704; 4. Turner v. East Midlands Trains Limited[2012] EWCA Civ. 1470; 5. J Sainsbury PLC v. Hitt[2003] ICR 111; and 6. Brito-Babapulle v. Ealing Hospital NHS Trust[2013] IRLR 854.
The principal issue for determination by the Tribunal is whether the respondent's dismissal of the claimant was fair in all the circumstances.
Under section 29 (1) of the Employment Rights Act, 2012 (“the Act”) the employer bears the evidential burden. It is for the employer to show:
- The reason, or, if more than one the principal reason, for the dismissal; 2. That the reason either falls within subsection (2) or must be some other substantial reason of a kind such as to justify dismissal of an employee holding the position which the employee held.
Section 29 (2) provides, inter alia, that
“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.”
Where the employer satisfies the requirements of sections 29 (1) and 29 (2), it is for the Tribunal to determine, in accordance with section 29 (4):
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i) whether the employer acted reasonably in treating the reason given for dismissal as a sufficient reason for dismissing the employee; and
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ii) whether the employer complied with the procedures set out in the Fourth Schedule, Part A.
Section 29 (5) further provides that the respondent is not entitled to dismiss the employee for any reason related to the capability of the employee to perform any work or the conduct of the employee without informing the employee of the accusations 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 of the Fourth Schedule.
The respondent asserted that on September 14, 2013, whilst in charge of its Heroes Square branch, the claimant received the cheque and cashed and deposited that cheque to the respondent's account at CIBC FirstCaribbean International Bank (Barbados) Limited. The respondent contended that the claimant failed to explain how the cheque was received, cashed and deposited and, as a consequence, the respondent suffered loss, in that the respondent had to reimburse Ms. Ward the sum of $40.00, the amount of the cheque.
The respondent argued that at the commencement of his employment with the respondent, the claimant received mandatory training over the course of a six-month period, included in which was training in cash handling procedures. In addition, on February 27, 2012, the claimant underwent training in the updated cash handling policies and procedures. Further, that the claimant's failure to explain or lend clarity to the circumstances relative to the misappropriation of his co-worker's money amounted to negligence and carelessness involving the property of the restaurant or the business of the restaurant. Therefore, the respondent's reason for dismissing the claimant was related to his capability to perform work of the kind for which he was employed by the respondent, as well as to his conduct.
We are persuaded that the respondent has met its burden. The respondent has shown the reason for its decision to dismiss the claimant and that the reason falls within section 29 (2).
The respondent having fulfilled the requirements of sections 29 (1) and 29 (2), it is for the Tribunal to determine first, whether the respondent acted reasonably in treating the claimant's handling of the cheque as a sufficient reason to dismiss and, secondly, whether the respondent complied with the procedural rules set out in Parts A and B of the Fourth Schedule.
Where the conduct of the employee is in issue, it is not for the Tribunal to consider the weight that was given or that ought to have been given by the disciplinary panel to the evidence on which it based its decision to dismiss the employee; that is the exclusive preserve of the disciplinary panel. (See X v. Ministry of Defence [2015] NICA 44; and Rogan v. South Eastern Health and Social Care Trust [2009] NICA 47.
Further, “it is not relevant … for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt”. The test, and the test all the way through is reasonableness; and certainly…a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.” Per Arnold J, in British Home Stores v. Burchell [1977] IRLR 379; [1980] ICR 303.
In Iceland Frozen Foods Ltd., v. Jones [1983] ICR 17 at 24 Browne-Wilkinson J noted that “in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another.”
The Tribunal must consider “whether the employer has acted within a “band or range of reasonable responses. to the particular misconduct found of the particular employee. If it has, then the employer's decision to dismiss will be reasonable…The Employment Tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The Tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which a” reasonable. employer might have adopted…An Employment Tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.” Per Aikens, LJ in Orr v. Milton Keynes...
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