Sonya Toppin v Republic Bank (Barbados) Ltd
| Jurisdiction | Barbados |
| Judge | Frederick Forde,Mr. Justice (Ret) Christopher Blackman,Edward Bushell |
| Judgment Date | 11 December 2020 |
| Docket Number | CASE: ERT//2018/047 |
| Year | 2021 |
| Court | Employment Rights Tribunal (Barbados) |
EMPLOYMENT RIGHTS TRIBUNAL
The Hon. Mr. Justice (Ret) Christopher Blackman GCM; Q.C Chairman
Edward Bushell, Esq Member
Frederick Forde, Esq; GCM Member
CASE: ERT//2018/047
Mr. Larry Smith Q.C and Ms. Jamila Smith Attorneys-at law for for the Claimant
Mr. Kevin Boyce and Mr. Michael Koeiman Attorneys-at-Law for the Respondent
. The issue for determination in this matter is whether attempting to take a large amount of United States dollars out of Barbados without exchange control approval, warranted dismissal.
. Section 27 of the Employment Rights Act (the Act) provides that an employee has the right not to be unfairly dismissed by his employer. Section 29 (1) of the Act further provides that in determining whether the dismissal is fair or unfair, it is for the employer to show the reason for the dismissal. Section 29 (2) states that an employer shall have the right to dismiss an employee for a reason which falls within the subsection if it (a) ………… (b) relates to the conduct of the employee;
. However, Section 29 (4) stipulates that the question whether the dismissal was fair or unfair, depends on whether the employer acted reasonably or unreasonably in treating the conduct as a sufficient reason for dismissing the employee; and the employer complied with the rules set out in Part A of the Fourth Schedule of the Act. Section 29 (5) further provides that an employer is not entitled to dismiss an employee for any reason related to the conduct of the employee,
“ Without informing the employee of the accusation 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”
. It is against the foregoing statutory provisions that the Tribunal has considered the issues in the claim for unfair dismissal by Sonya Toppin (the Claimant) against Republic Bank (Barbados) Limited (the Respondent). While there are varying views on the law relating to the issues which are in contention, there is no dispute as to the facts of the matter recorded in the two Volumes of Documents, (the Documents) presented and used at the hearing before the Tribunal, which identified 50 attachments to the Witness Statement of the Claimant, marked SMT 1 to SMT 50 and 23 attachments to the Witness Statement of Yvonne Hall, the sole witness for the Respondent, marked A to W. There has been no challenge to any of the contents in the Documents and the Tribunal has relied upon the information disclosed in the Documents and the evidence presented before the Tribunal in arriving at its decision.
. The Claimant commenced employment with the Respondent a licensed financial institution, then known as the Barbados National Bank on February 9, 2005 in the position of clerk at its Independence Square branch. At the time of her termination she was a Supervisor, Sales at the Lime Grove, Holetown branch of the Respondent.
. On January 7, 2017, the Claimant was departing Barbados by air and after clearing immigration at the Grantley Adams International Airport and prior to boarding a flight to the United States, customs and immigration officers questioned her and subsequently confiscated a sum of cash in United States dollars with which she was traveling and which was in excess of the permitted foreign currency travel allowance (the incident). The Claimant continued with her travel to the United States and returned to Barbados on January 10, 2017.
. Consequent to rumours circulating on social media and generally in relation to the incident, management of the Respondent asked the claimant to provide an explanation. By letter dated January 31, 2017 (SMT 5) to the Senior Manager, Human Resources of the Respondent, the Claimant said in the third paragraph of the letter: “ On January 7, 2017 whilst at Grantley Adams International Airport on route to the United States, I was asked to surrender US cash with which I was traveling with and which was in excess of the permitted allowance. I continued with my travel to the United States and returned to Barbados on January 10, 2017.”
. By letter dated February 7, 2017 (SMT 7) the Respondent placed the Claimant on suspension pending an investigation into the incident with her pay and other benefits reserved. On February 10, 2017 the Claimant was invited to attend an investigative meeting on February 15, 2017 at 2.00 pm and was advised that she may have a representative accompany her to the meeting.
. The investigative meeting which was held on February 21, 2017 lasted just under 90 minutes. The persons present were the Claimant, her representatives, Mr. Larry Smith, and Ms. Shanna Goddard, attorneys-at-law for the Claimant, Ms. Sharon Zephrin General Manager Retail, Ms. Yvonne Hall Senior Manager, Human Resources and Ms. Sasha Shillingford, Corporate Secretary and General Counsel, all representing the Respondent. The following questions, amongst others were posed to Miss Toppin during the meeting.
The Claimant declined to answer any of the above questions. In response to a further question, Ms. Toppin said that she had made an application to the Central Bank about recovery of the confiscated funds.
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(a) How much cash were you carrying?
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(b) Were you carrying other financial instruments other than cash?
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(c) How much cash was confiscated?
. In conformity with the stipulations of section 29 (5) of the Act, the Claimant was requested by letter dated March 3, 2017 (SMT 11) to attend a disciplinary hearing on March 9, 2017 at 3.00 pm, to consider an allegation of gross misconduct in relation to the incident and, as in the case of the investigative meeting, was advised that she may have a representative accompany her to the meeting. In light of events which unfolded at the disciplinary hearing, the Tribunal later in this decision will comment on the role of the representative at a meeting called by the employer.
. The letter of March 3 rd stated that the investigations of the Respondent had shown:
“1. You sought to travel out of Barbados with foreign currency over the permissible amount without having declared same amounts which is a criminal offence under the Customs and Exchange Control Laws and is therefore in violation of the Bank's Code of Ethics and Operating Principles.
2. You sought to travel out of Barbados with over BBD $10,000 in foreign currency without Exchange Control approval which is an offence under the Anti-Money Laundering Laws of Barbados and is therefore in violation of the Bank's Code of Ethics and Operating Principles.
3. Your income is not consistent with the amount of cash with which you were travelling.
4. You refused to provide management with critical information relating to the Incident”
. The Claimant was advised that the hearing would be conducted by Sean Hussain, General Manager, Corporate and Commercial Credit and Rhonda Walcott Hackett, Manager, Industrial Relations.
. The disciplinary meeting in fact occurred on March 21, 2017. The Notes of that meeting identified as Exhibit SMT 16 to the witness statement of the Claimant show that in addition to Mr. Sean Hussain and Mrs. Rhonda Walcott-Hackett, Miss Sasha Shillingford, General Counsel of the Respondent, Miss Judith Best Typist were also present. The Claimant Miss Toppin was accompanied by Mr. Larry Smith, Ms. Shanna Goddard and Ms. Desiree Browne, attorneys-at-law for the Claimant. The truthfulness and accuracy of Exhibit SMT 16 was acknowledged by Miss Toppin in her evidence before the Tribunal. A critical examination of the notes of the March 21 st meeting revealed that the meeting which started at 2.41pm, ended at 5.14 pm, a period in excess of two and a half hours. Just over an hour after the meeting started, the Chairman of the meeting Mr. Sean Hussain is recorded as asking: “Is Sonya Toppin prepared to say anything”. Moreover, the notes indicate that the Claimant is recorded as not saying anything, as she confirmed in her evidence before the Tri unal.
. During the course of the disciplinary hearing, the Respondent indicated that it had become aware of the quantum of funds from a confidential source. As noted at paragraph 9 above, the Claimant had declined to answer the question as to how much cash she was carrying. At the hearing, the Claimant produced evidence of two loan bonds from the Barbados Public Workers Cooperative Credit Union issued in November and December 2016 in the sums of $21,500.00 and $15,734.71 respectively, with Mr. Smith, Counsel for the Claimant indicating that “ the other $7000.00 could have been provided through relatives, friends, aunts, people who may have given the claimant money to pack barrels and buy items.”
. The Chairman of the disciplinary hearing ended the hearing but later decided to reconvene it to receive an affidavit from the claimant's mother Jennifer Yvette Toppin. In the affidavit sworn 3 rd April, 2017 Jennifer Toppin said that on November 23, 2016 she obtained the sum of $21,500.00 by loan from the Barbados Public Workers Co-operative Credit Union, and that subsequently the proceeds of the loan were converted into United States currency and given to her daughter for travel to the USA.
. Two further disciplinary meetings were held on April 6 and 10, 2017 and the persons present on both occasions were Sean Hussain and Rhonda Walcott Hackett on behalf of the Respondent, Juliet Best as typist and the Claimant. At the meeting on April 6, the Claimant in response to the question “ Are you prepared to continue the disciplinary meeting without your representative present? Replied “No”. The Claimant maintained that position at the meeting held on April 10 at which point Mr. Husain declared that the...
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