Ramsay v St. James Beach Hotels Services Ltd

• Jurisdiction: Barbados
• Court: Court of Appeal (Barbados)
• Judge: Simmons, C.J.
• Judgment Date: 26 June 2002
• Neutral Citation: BB 2002 CA 20
• Docket Number: Magisterial Appeal No.4 of 1999
• Date: 26 June 2002

Court of Appeal

Simmons, C.J.; Chase, J.A.; Williams, J.A.

Magisterial Appeal No.4 of 1999

Ramsay

and

St. James Beach Hotels Services Limited

Appearances:

Mr. Maurice King Q.C. and Mr. Adrian King for the appellant.

Mr. Andrew Thornhill and Mr. Gregory Nicholls for the respondent.

Employment law - Dismissal — Appeal against Magistrate's finding that the appellant had been lawfully dismissed — Whether the words found to have been used by the appellant were sufficient to warrant summary dismissal — Finding that having regard to the appellant's long continuous employment with the respondent or its predecessors in title, and the fact that the conduct complained of was an isolated incident, the misconduct did not justify summary dismissal — Appeal allowed.

Simmons, C.J.

1 This is an appeal by the appellant from a decision of the Magistrate of District “E” (Holetown), in which, contrary to the appellant's claim, the magistrate found that she had been lawfully dismissed by her employer, the respondent on March 19, 1997.

2 The appellant's summary dismissal arose out of a workplace altercation involving an exchange of words between the appellant, a hotel maid at Coconut Creek Hotel and the respondent's housekeeper, Ms. Desce. On the morning of March 7, 1997, the appellant went to the housekeeper's office and asked her for her pay slip. Ms. Desce handed it to her and she looked at it. Her name was incorrectly spelt and she told Ms. Desce so. It was not the first time that her name had been incorrectly spelt. The appellant then asked Ms. Desce for an amenity bag and a garbage bag.

3 The magistrate found that an exchange of words, characterized by him as “a threat coupled with an obscenity” then followed. The appellant told Ms. Desce “I going beat you bad as cunt!” Thereupon, she left the office and Ms. Desce followed her out enquiring “You say you going beat me bad as cunt?” The exchange was heard by Annette Moore.

The appellant denied using the words and suggested that they had been fabricated by Ms. Desce.

4 The evidence disclosed that on March 7, 1997, the Manager of the hotel (Mr. Smith) suspended the appellant for 5 days and she returned to work on March 12. According to the evidence in chief of the appellant: “Mr. Smith said he investigate and he ain't find no evidence against me and I continued with the work.”

There was a meeting between management of the hotel and the appellant's Union representatives on March 14, 1997, “to investigate the charge of Eudese Ramsay using threatening remarks and obscene language to her supervisor.” By letter dated March 21, 1997, the appellant was dismissed “effective March 19, 1997”. No reason for the summary dismissal was given in the letter.

5 In his very careful reasons for decision, the Magistrate asked himself two questions. First, did the appellant use the words? Secondly, if she did, was the conduct such as to warrant summary dismissal? He answered the questions by finding on a balance of probabilities that the appellant had used the words and that “such an exhibition of behaviour to the supervisor (housekeeper) demonstrates conduct which the court found to be incompatible with the continuation of the working relationship…..It struck at the root of the employer/employee relationship.”

6 The magistrate concluded his reasons for decision in these terms:

“On an evaluation of all the evidence, the court was of the view that the plaintiff's (appellant's) behaviour amounted to misconduct incompatible with the relationship of employer and employee. In the circumstances, the court found that the summary dismissal of the plaintiff for threatening a supervisor and using obscene language was justified.”

He dismissed her claim for damages for wrongful dismissal.

7 On appeal Mr. Maurice King Q.C. submitted that the appellant's conduct did not deserve a purported summary dismissal. He pointed out that it was only by letter of March 21, 1997 that she was dismissed even though the incident took place some 14 days earlier. And then she was sent home with $392.15 being her week's wages earned up to the date of dismissal.

APPEAL AGAINST FINDINGS OF FACT

8 Mr. King contends that the Magistrate's findings were erroneous because “the entire circumstances made it incredible that the words were used as alleged.” He suggested that there was a conspiracy between Ms. Desce and Annette Moore to fabricate a reason for the appellant's dismissal.

9 In respect of this first submission, we need to reiterate the well established principle of law, strenuously argued by Mr. Thornhill, that an appellate court will only disturb a decision or finding of fact in the court below where there was no evidence at all or only a scintilla of evidence to support the finding – see, for example, Layson v. Marshall (Civil Appeal No.45 of 1990); Edwards v. Buxton (1982) 30 W.I.R. 82; Powell v. Streatham Manor Nursing Home [1935] A.C. 243 at p. 251 per Viscount Sankey L.C.; Bookers Stores Limited v. Mustapha Ally (1972) 19 W.I.R. 230; Peters v. Peters (1969) 14 WIR 457.

10 Citations are only necessary from two of those cases to reinforce the principle. In Layson v. Marshall, Clifford Husbands J (as he then was) giving the judgment of the then Divisional Court said:

“[The] Divisional Court will not lightly differ from the finding of the magistrate on a question of fact and will not disturb a judgment of fact unless satisfied that it was unsound. In Benmax v. Austin Motor Co. [1955] 1 All E.R. 326, it was decided that an appellate court, on appeal from a case tried before a judge alone, should not lightly differ from a finding of the trial judge on a question of fact, but a distinction must be drawn between the perception of facts and the evaluation of facts. Where the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge, and should form its own independent opinion, though it will give weight to the opinion of the trial judge.”

11 The reason for the reluctance of an appellate court to interfere with findings of fact by a court below is that “the judge was in a better position to assess the credibility of the witnesses and the value of their evidence” per Berridge, J.A. in Edwards v. Buxton (supra at p.87).

12 In this appeal we find nothing compelling us to interfere with the magistrate's finding of fact on the first question, namely, whether the appellant did in fact use the words. He saw and heard the witnesses, resolved discrepancies and disputed evidence and, in the end, preferred the evidence of Ms. Desce to that of the appellant, as he was entitled to do. There was ample evidence upon which he could come to that conclusion as a trier of fact.

WAS SUMMARY DISMISSAL JUSTIFIED?

13 Mr. King's second submission was that, assuming (but not admitting) that the words were used, they did not warrant summary dismissal.

In counsel's submission, they did not constitute a threat properly so called in law, because there was no evidence that Ms. Desce had been put in fear that the appellant would execute the threat. Moreover, he contends, the words have to be evaluated in the context of the standards of contemporary society and when that evaluation is made, a court should not find that they were of such a nature and degree as to lead to summary dismissal.

14 This second submission is of a different quality from the first. It invokes the question: What conduct justifies summary dismissal? Summary dismissal is dismissal without notice. Either party to the individual contract of employment may treat the contract as at an end if the other commits a breach striking at the root of the contract. It is always a question of degree whether conduct goes to the root of the contract or not. ( Henry v. Mount Gay Distilleries Ltd Privy Council Appeal No.43 of 1998). And it is worth remembering that conduct that was held to justify summary dismissal in one case at one point of legal history may not necessarily have the same consequence today. The familiar phrase of the law that “each case depends upon its own facts” is especially apposite in this area of the common law. The social dynamics of Labour Law exemplify in a stark way the ability of the common law to respond to changing views, values and conditions of society over time. The changes have been more than just changes in the nomenclature and notions of master and servant. They have been attitudinal also.

REVIEW OF THE CASES

15 It will be instructive to deal with a few of the cases over the last 150 years to demonstrate how the attitude of the common law has changed towards certain types of employee conduct. One of the earliest cases was Callo v. Brouncker (1831) 4 C.&P. 518 where Parke B appeared to lay down rules for summary dismissal. He thought then, that summary dismissal was justified for moral misconduct, habitual neglect or wilful disobedience to the order of a master.

TURNER v. MASON

16 Fourteen years later, in the well-known case of Turner v. Mason (1845) 14 M.&W. 112, the Court of Exchequer Chamber found that a domestic servant had been lawfully dismissed for visiting her sick mother against the instructions of her master.

Parke B reflecting the mores of the times held that the mother's illness was “not sufficient to justify her in disobeying his order; there is not any imperative obligation on a daughter to visit her mother under such circumstances, although it may be unkind and uncharitable not to permit her.” Moreover, in the nineteenth century one act of disobedience was enough to justify instant dismissal.

17 By the twentieth century, the harsh attitude of the common law had begun to mellow. Three English cases which we shall discuss later, are illustrative of the point although, for reasons already stated, these cases can only be used as guides. It is also important to...