Lovell v Rayside Construction Ltd
| Jurisdiction | Barbados |
| Judge | Mason, J.A. |
| Judgment Date | 04 March 2010 |
| Neutral Citation | BB 2010 CA 2 |
| Docket Number | Mag. App. No. 16 of 2004 |
| Court | Court of Appeal (Barbados) |
| Date | 04 March 2010 |
Court of Appeal
Waterman, J.A.; Williams, J.A.; Mason, J.A.
Mag. App. No. 16 of 2004
Mr. Alrick Scott for the appellant.
Mr. Deighton K. Rawlins for the respondent.
Employment law - Summary dismissed — Magistrate upholding dismissal — Appeal — Whether magistrate wrong in considering insolence as basis for justifying appellant's dismissal — Code of conduct — Whether summary dismissal for insolence contemplated by respondent's Code of Conduct — Paragraph 8 of Code subject to law and principle of proportionality — Effective balance to be struck between severity of employee's misconduct and sanction imposed — Magistrate wrong in upholding dismissal — Appeal allowed.
This is an appeal from a decision of the Magistrate for District “A”, Mr. Valton Bend, given on 19 October 2004. The Magistrate found that the appellant refused to carry out a lawful order of and was insolent to the respondent's General Manager. He held that the combined effect of the appellant's disobedience and insolence justified his summary dismissal.
The appellant seeks an order that the decision of the Magistrate be set aside and judgment entered for him.
Background
The appellant began his employment with the respondent on 17 April 1975 as a sales clerk. He continued in the employment until 3 September 2003 on which date he was summarily dismissed. At the time of his dismissal his job title was that of costing officer, a post that he held for twelve years. This position required him to make purchases of parts and equipment for the respondent's vehicles and record the same.
On 2 September 2003, the respondent's manager sent the appellant the following “Interoffice Memorandum”:
“On or about August 10th, 2003, we discussed the preparation and submission of reports on the operations of the workshop.
Again on or about August 27th 2003, we discussed this subject and at that time you were informed that this exercise must commence on September 1st 2003. On September 19th, 2003, when I visited your work station in order to observe the progress you informed me that you had no intention to carryout (sic) that requested (sic) unless money was discussed. Present were Mr. Ken Catlyn, Mr. Hallam Byer and Mr. Neville Wright.
You refused to carryout (sic) a reasonable request and a meeting is convened for tomorrow, September 3rd, 2003 at 8:30 am. at which you may give reasons why you should not be disciplined for your actions: You are informed that it is your right to have a representative present at this meeting”.
On 3 September 2003 at that meeting the appellant was summarily dismissed and the following letter sent to him:
“This letter confirms that at a meeting this morning (September 3, 2003) in the present (sic) of Mr. Edgar Norville, Mr. Hallam Byer, Ms Sandra Holder, Ms. Denise Taitt and yourself it was clearly establish (sic) that you deliberately refused to carry out a lawful instruction issued by the General Manager Mr. Edgar Norville.
Such action is totally unacceptable and cannot and will not be tolerated.
Management has therefore, taken the decision to terminate your services effective today 3rd September 2003. You will be paid September salary and your vacation pay”.
The appellant testified that sometime in August 2003 he initiated a meeting with Mr. Norville, the respondent's General Manager, in order to discuss work and pay since an employee had resigned and that employee's work had now been assigned to him. Mr. Norville felt “he had a good case” but suggested that he refer the matter to the union. At that meeting Mr. Norville informed him that he was setting up a computer programme for the appellant's department.
On 27 August 2003, he was asked by Mr. Norville to go to the office of Mr. Norville's secretary, Ms. Michelle Griffith, about the programme. Ms. Griffith informed him that nothing had been entered on the computer, and that it would take longer than an hour to complete and that he should return the following day. The next day he received a call from Ms. Griffith at 4.25 p.m. This was five minutes before he left his work station.
On 1 September 2003, Mr. Norville visited him in his workshop and enquired about the programme. He responded, “work and pay go together”. Mr. Norville queried whether he was refusing to do work unless he was paid. He did not tell Mr. Norville that he had spoken to Ms. Griffith.
On 2 September 2003 at 4.30 p.m. he received the above referenced memorandum (see para. [4]) summoning him to a meeting scheduled for the next morning at 8.00.
He challenged Mr. Norville's chairmanship of the meeting and Mr. Norville indicated that he was the General Manager with authority to discipline him. He continued, “I told him as far as I know all power come from God and he is man and use the pen befitting to him”. He was then asked to leave the room and when he queried that request he was then “fired”.
Under cross-examination he maintained that he had been dismissed “but not for not carrying out a lawful instruction”. He denied refusing to supply reports to Mr. Norville on his workshop, stating that monthly reports had been discontinued for over a year and he had been required to keep his own manual record. He said that the union representative on his behalf asked that he be forgiven and be afforded a further opportunity to prepare the information.
Mr. Norville's recollection of the events was different. He testified that in August 2003 he discussed with the appellant and others the daily preparation of reports from the workshop with effect from 1 September 2003. The appellant's immediate response was “no money, no work”. He reminded the appellant of the ongoing negotiations with the union.
On 27 August 2003 he reminded the appellant that “the reporting was necessary” and the appellant responded “in an agreeable manner”.
He testified that on 1 September 2003 he enquired of his secretary if she had been receiving the reports from the appellant. He did not “like” her response so he went to the appellant's station in the workshop. Other personnel were present and when he asked the appellant how the preparation of the reports was progressing, the appellant replied “no money, no work”. He waited until the next day and when he did not receive the report, he sent the appellant a memorandum inviting him to a meeting to give reasons why he should not be disciplined for his actions.
When Ms. Holder, the union representative, asked him whether he would be willing to forgive the appellant for his actions and start from the beginning, there was an outburst from the appellant that he was not paying homage to him and that there was someone mightier than him. The appellant went on to say, “you have the pen, use it”. It was at that point that he informed the appellant that he was terminating his services.
Under cross-examination he stated that he remembered the appellant going to see his (Mr. Norville's) secretary to see what was being done with his information. He did not see Mr. Lovell on 1 September. Although he stated that he knew that Mr. Lovell did not take the information to his secretary he admitted that he would not have known what transpired between the appellant and Ms. Griffith, the secretary, when they discussed the preparation of the programme.
Ken Catlyn, an employee of the respondent, who was present in the workshop with the other employees when Mr. Norville visited the appellant on 1 September gave evidence on behalf of the respondent. He testified that Mr. Norville and the appellant “were in conversation” and he heard the appellant say, “not at all, money first”. Under cross-examination he admitted that he did not know what money was being referred to.
None of the other employees who was present on that occasion gave evidence; nor was the secretary called to give evidence.
The Magistrate gave the following reasons:
“The plaintiff was employed by the defendant as a costing officer. He was given an order by the General Manager to submit some information about the cost of parts and equipment. He was reminded of the urgent need for the information.
A meeting was held concerning the matter. The plaintiff became insubordinate to the General Manager.
The Court noted that the defendant was going through a process of reorganization.
It concluded that the order was lawful and incidental to the plaintiff's line of work. The combined effect of the refusal to carry out the instructions and the insolent behaviour amount to just cause.
In the circumstances the claim was dismissal (sic). An award for cost (sic) to the defendant was deemed reasonable in the matter.”
The grounds of appeal can be distilled into the following issues to be determined:
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(a) whether the Magistrate complied with his duty to give adequate reasons for his decision;
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(b) whether there was a refusal by the appellant to carry out a lawful order of his employer;
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(c) whether the Magistrate was in error in considering insolence as a basis for holding that the appellant's summary dismissal was justified.
Counsel for the appellant submitted that it is an error of law for a judge to fail to give any or any adequate reasons for his decision. He referred to the case of Aqui v. Pooran Maharaj [1983] 34 WIR 282 in which the Court of Appeal of Trinidad and Tobago stated that where the judge or magistrate at first instance has failed to give reasons then that judge or magistrate does not have that “protective cover” of caution which an appellate court applies when it is asked to disturb a finding of fact. Counsel maintained that because the Magistrate did not give any or any adequate reasons and failed to...
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