Ricardo Delisle Nurse Millennium v Investments Ltd (T/A The Crane Resort)
| Jurisdiction | Barbados |
| Judge | Kathy-A. Hamblin,Beverley Beckles,Dr. Cathy Norville-Rochester |
| Judgment Date | 12 December 2022 |
| Docket Number | NO: ERT/2015/152 |
| Court | Employment Rights Tribunal (Barbados) |
Kathy-A. Hamblin, Deputy Chairman
Beverley Beckles, Employees' Representative
Dr. Cathy Norville-Rochester, Employers' Representative
NO: ERT/2015/152
IN THE EMPLOYMENT RIGHTS TRIBUNAL
Miss Honor C Chase Attomey-at-Law for the Claimant.
Mr. Mark H. Forde, Attorney-at-Law for the Respondent.
For the reasons stated hereunder, it is the unanimous decision of the tribunal that the Claimant was unfairly dismissed by the Respondent.
Ricardo Delisie Nurse, (“the Claimant”) a security supervisor in the employ of Millennium Investments Ltd., trading as The Crane Resort (“the Respondent”), complains that he was unfairly dismissed from his position on May 12, 2015, based on an allegation that on April 19, 2015, he had received a quantity of stolen desert rose plants, the property of his employer. The Claimant contends that at the material time, he was not on the Respondent's premises but was attending a motor rally event at Sailor Gully, St Peter.
In response, the Respondent states that on April 20, 2015, Edwin Franklyn, the resorts landscape manager, reported that 20 desert rose seedlings with a total value of $40.00 were missing from the Respondents plant nursery.
Investigations led to another employee B 1, who allegedly confessed to having stolen and sold the plants to the Claimant The Respondent further alleges that B claimed that at approximately 11:00 a.m, on April 19, 2015, the Claimant arrived at the resort in a blue car which needed bodywork on the side, which was being driven by “a big, fat, black, man”.
The Respondent reported the matter to the police, who took the Claimant into custody and executed a search warrant at his residence. The Claimant was identified at the police station by Adrian Arthur, then a security officer but now the Respondent's security supervisor. Mr. Arthur stated that the Claimant came onto the resort premises on April 19, 2015, face obscured by a cap, crouched in the front seat of a white Hiace van driven by a “light-skinned man”.
The Claimant was also identified at the police station by B as the person to whom B sold the plants. However, the plants were not found in the Claimant's possession, custody or control and he was neither charged nor prosecuted in relation to them.
The Claimant was instructed by Wallwin Strickland, the Director of Security, to attend a meeting on May 4, 2015. At that meeting, he was presented with a letter titled “Notice of Disciplinary Action” and was instructed to return to theresort the following day, May 5, 2015, for a hearing. Meetings were held with the Claimant on May 5, 7 and 12, 2015, at the conclusion of which the Claimant was terminated.
The Respondent justified the dismissal by asserting that they concluded “on a balance of probabilities that it was more likely that he was at the resort at the time both [B] and Security Officer Adrian Arthur contended than was his assertion that he was at the Sailor Gully in St Peter.”
The Claimant brought his claim for unfair dismissal to the Employment Rights Tribunal by Claim Form filed on December 18, 2015.
The issue for determination by the tribunal is whether the Claimant's dismissal was fair or unfair.
Resolution of that issue necessitates that the tribunal consider whether the reason for the dismissal falls within section 29(2) of the Employment Rights Act, 2012–9 (“the Act”] or was some other substantial reason of a kind such as to justify the dismissal in accordance with section 29[l][b] and, if was, whether the employer followed a fair procedure before making the decision to dismiss the claimant
Even if the employer's reason for the dismissal falls within section 29(2), the dismissal will be deemed to be unfair if the disciplinary procedure followed by the employer was not fair.
Section 29 of the Act deals specifically with fairness. The relevant parts of that section are reproduced below.
29. (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or
unfair, it is for the employer to show
(a) the reason, or if more than one, the principal reason for the dismissal; and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) 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;
(c) is that the employee was redundant but subject to section 31; or
(d) is that the employee could not continue to work in the position which he held without contravention, either on his part or on that of his employer, of a duty or restriction imposed by law.
(4) Where the employer has fufilled the requirements of subsection (1), the question whether the dismissal was fairor unfair, having regard to the reason shown by the employer, shall depend on whether
(a) the employer acted reasonably orunreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) the employer complied with the rules setout in Part A of the Fourth Schedule.
The Respondent appears to have cited two different reasons for dismissing the Claimant, namely, “due to an allegation made by a former employee that [the employee] sold eighteen stolen plants, property of the Crane to [the Claimant]. His presence at the property at the material time was corroborated by a Security Officer/Gateman” as stated on the NIS Termination/Lay-Off Certificate, and “loss of confidence”, the ground stated in the letter of termination dated May 12, 2015.
Counsel for the Respondent sought to explain the discrepancy in the two documents in this way:
“All the statement written on the back of the NIS Termination of Services/Lay-Off Certificate sought to do was to expand on the reason for the Loss of Confidence in keeping Mr. Nurse on staff. My client could not write, for example, “receipt of stolen goods” as that would be entering into the realm of proven criminal offence, where the standard of proof is beyond reasonable doubt.”
Counsel's explanation is confusing, a fact made more apparent by the Respondents contention that the Claimant's dismissal was justified, since “if is quite dear that receiving of stolen goods, like theft or sale of illegal drugs would constitute gross misconduct and attract termination. But the actual offence does not have to be proven”.
While he does not specifically refer to the relevant section of the Act, it would appear that counsel for the Respondent is here invoking section 29 2(b) and is asserting the employer's right to dismiss for matters relating to the conduct of the employee.
Counsel for the Claimant argues that the dismissal “could not he related to any conduct and/or misconduct on [the Claimant's] part if the reason for his dismissal was due to an allegation made by a former employee (emphasis added).”
She cites a Webster's dictionary definition of the words “conduct” and “allegation” as, “fo act or behave in a particular manner” and “an assertion unsupported and by implication regarded as unsupportable”, respectively, to question how the employer could “ascribe an unproven assertion to the behaviour of an employee”. She states further:
“In the absence of proof of the allegation, the employer cannot say that the employee misconducted himself in any way.”
Counsel pointed out that the Claimant was not charged by the police for any crime relating to the alleged theft of the plants and, further, that the Respondent never found the plants in the Claimant's possession.
What Counsel is suggesting is that absent proof of misconduct, an employer cannot take disciplinary action against an employee who has allegedly engaged in wrongdoing.
Counsel's argument, if accepted, would be effective to preclude any employer from taking disciplinary action against an employee who is, on reasonable grounds, suspected of misconduct but against whom the employer has no direct evidence of culpability. Her argument runs counter to the learning and case law on the subject
While the evidence suggests that the Respondent employer applied both the criminal standard of proof (proof beyond a reasonable doubt) and the civil standard of proof (proof on a balance of probabilities) in a complete blurring of legal principles, it is the view of this tribunal that the legislation does not impose on an employer either of those standards. The threshold which an employer must reach in order to discharge his burden is appreciably lower than the civil standard of proof.
Halsbury's Laws of England 4 th Edition, Reissue, Vol. 16 explains the rule relating to dismissal for reasons related to conduct as follows:
“It is well-established that in a case of suspected misconduct the test of fairness is not whether the employer has proved the employee guilty and still less whether he has done so beyond reasonable doubt, but rather whether the employer genuinely believed on reasonable grounds in the employee's guilt.”
The Act does not require specific proof of an allegation of misconduct. It only requires that the reason for dismissal be “ related to” the employee's conduct. Accordingly, an employee may be dismissed for an act or an omission to act. A dismissal in either case need only be based on a reasonable belief.
The tribunal must be careful not to impose on employers a higher standard of proof than the legislature intended. To do so would effectively tie the hands of employers rendering it difficult, if not...
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