Peter Bowen v Johan Investments Ltd
| Jurisdiction | Barbados |
| Judge | Kathy-A. Hamblin,Beverley Beckles,John Williams |
| Judgment Date | 15 November 2018 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | CLAIM NO. ERT NO. 2014/086 |
IN THE EMPLOYMENT RIGHTS TRIBUNAL
Kathy-A. Hamblin, Deputy Chairman
Beverley Beckles: Employees' Representative
John Williams-Employers' Representative
CLAIM NO. ERT NO. 2014/086
(T/A Zaccios Restaurant)
The Claimant, Peter Bowen, in person
The Respondent, Johan Investments Limited (trading as Zaccios Restaurant) represented by Hannelore O'Brien, Director and Vernal Henry, General Manager.
For the reasons set out below, the unanimous decision of the Tribunal is that the Claimant, Peter Bowen, was unfairly dismissed by the Respondent Johan Investments Limited (trading as Zaccios Restaurant) on August 22, 2014.
Peter Anderson Bowen (“the Claimant”), a chef, complains that on August 22, 2014 he was handed a letter by Andrea Sealy, Assistant Manager of Zaccio's Restaurant, informing him of his dismissal. The Claimant contends that his dismissal from the position which he had held since November 21, 2010, was unfair.
The Respondent justifies its dismissal of the Claimant on the ground that the Claimant was repeatedly warned, both orally and in writing, in the three-month period immediately preceding his dismissal, about his lack of focus, failure to prepare meals in accordance with the menu and improper food preparation. The Respondent based its decision to dismiss the Claimant on three specific incidents relating to poor food quality and preparation which allegedly occurred on August 20, 2014.
The Claimant filed his complaint with the Labour Department on September 5, 2014 and, after an unsuccessful attempt to conciliate the matter, the Chief Labour Officer referred the complaint to the Tribunal by letter dated November 11, 2014.
The Claim Form and Witness Statement were filed on August 27, 2015 and August 31, 2015, respectively. With these, the Claimant also filed a copy of the termination letter and Termination/Lay-off Certificate, both dated August 22, 2014, and a letter from the Respondent dated February 9, 2011 confirming the Claimant's employment status and weekly wages.
The Claimant was the sole witness to testify on his behalf.
The Respondent filed its Response dated December 12, 2014 on December 15, 2014, that is, before the Claimant filed the Claim Form. The Respondent also filed Witness Statements of Andrea Sealy and Oneal Benskin dated December 9, 2014 and December 11, 2014, respectively, together with copies of the termination letter, and warning letters dated October 15, 2013, May 26, 2014, June 4, 2014, August 13, 2014 and August 20, 2014. In addition, the Respondent provided two copies of “Zaccios Rules and Regulations”, one of which was intended to replace the incomplete copy of the said Rules and Regulations initially filed by the Respondent.
Mr. Benskin was the sole witness called by the Respondent, the Respondent having previously informed the Tribunal that Ms. Sealy is no longer in its employ.
Hannelore O'Brien, a director of the Respondent company was called as a witness by the Tribunal to explain certain matters which were not made clear in the bundle of documents filed by the Respondent or which could not be ascertained from Mr. Benskin's evidence.
In the Claim Form, the name of the Respondent is given at paragraph 7 as “Zaccios Restaurant”. The Respondent confirms, as stated in its Response, that “Zaccios Restaurant” is the trade name of Johan Investments Limited. In these circumstances, the Tribunal amended the Claim Form, with the consent of the Respondent, to reflect the correct name of the Respondent. The matter will therefore be continued as Peter Bowen v. Johan Investments Limited (trading as Zaccios Restaurant).
The sole issue for determination by the Tribunal is whether the Respondent's decision to dismiss the Claimant was fair in all the circumstances.
Under Section 29 (1) of the Act, the employer must show:
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1. The reason, or, if more than one the principal reason, for the dismissal; and
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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 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”. In Section 29(3) “‘capability’, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality.”
The termination letter, issued to the Claimant on August 22, 2014, referred to poor food preparation resulting in a customer complaint, as well as the Claimant's lack of interest in preparing food according to the menu, as the reasons for the termination of the Claimant's employment. The Respondent also sought to rely on a series of letters which were purportedly issued to the Claimant, in which were outlined multiple infractions including:
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• preparing excessive amounts of vegetables and starches;
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• mixing sweet potatoes with vegetables resulting in spoiling and wastage;
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• assisting the porter after closing;
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• demanding vacation within two days after seeking a cash advance on vacation pay and being offered a smaller sum than requested;
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• preparing meals of poor quality;
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• preparing orders incorrectly;
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• preparing food other than as specified on the menu;
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• failure to use a scoop provided for portioning sweet potato fries; and
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• frying fish and sweet potato fries in the same deep-fat fryer.
The Respondent has shown that the principal reason for the Claimant's dismissal was his capability to perform the work for which he was engaged. Lack of capacity is a potentially fair reason for dismissal of an employee.
Once the employer meets its burden under Sections 29 (1) and 29 (2), it is for the Tribunal to determine pursuant to 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. An employer may not dismiss an employee for any reason related to the capability of the employee to perform any work 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, respectively, of the Fourth Schedule. (See Section 29 (5)).
The role of this Tribunal is “ not [to] simply consider whether [we] think that the dismissal was fair and thereby substitute [our] 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 [2011] ICR 704.
Any opinion which this Tribunal has with respect to the Claimant's competence is immaterial. The Respondent's belief is what is relevant, provided always that the Respondent's belief is genuine and honest and is based on reasonable grounds. The test which must be applied in determining whether a dismissal based on incapacity is fair, was laid down by Lord Denning MR in Alidair Ltd. v. Taylor [1978] IRLR 82:
“ Wherever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent.”
In his testimony, Mr. Benskin described the Claimant with whom he worked for three years and whom he supervised, as “ a competent chef”, “ a very good employee”, “dependable” and one who “ worked hard”. The Tribunal is still bound to consider, notwithstanding these accolades (which might be the personal views of the witness and not necessarily those of the Respondent), whether the Respondent genuinely believed that the Claimant lacked capacity to discharge his duties. That necessitates an assessment of the reasonableness of the grounds on which the Respondent based its belief in the Claimant's lack of capacity.
According to Mrs. O'Brien, she made the decision to dismiss the Claimant after consultation with Ms. Sealy and Mr. Benskin. Ms. Sealy, who purportedly signed and issued the Claimant's dismissal letter just two days after the alleged events of August 20, 2014, excluded from her witness statement any reference to those events which ultimately led to the Claimant's dismissal.
Ms. Sealy's witness statement focuses on the events of October, 2014 (the Tribunal believes that this is a typographical error and the reference is to October, 2013), relating to the Claimant preparing too many vegetables and mixing sweet potato with the vegetables. She also refers to a May 2014 incident involving a request for an advance on his vacation pay, neither of which was specifically referred to in the Claimant's termination letter.
In Mr. Benskin's witness statement, he states that the Respondent received complaints about the Claimant “ on numerous occasions” about preparing “ too much vegetable (sic) or mixing vegetables with Yams or Sweet Potatoes-which...
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