Wendell Storey v Paynes Bay Resort Inc. T/A Waves Hotel & Spa
| Jurisdiction | Barbados |
| Judge | Mr. Omari Drakes,Mr. John Williams,Ms. Beverley Beckles |
| Judgment Date | 23 January 2018 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: ERT/2014/031 |
EMPLOYMENT RIGHTS TRIBUNAL
Mr. Omari Drakes, Mr. John Williams, Ms. Beverley Beckles
Case: ERT/2014/031
Messrs DeCoursey Eversley and Glenroy Goddard and Caswell Franklyn for the Claimant
This is a claim of unfair dismissal made pursuant to Section 32 (1) of the Employment Rights Act – 2012 (the “Employment Rights Act”) by Wendell Storey (the “Claimant”) against his former employers Paynes Bay Resort Inc. t/a Waves Hotel & Spa (the “Respondent”) following the Claimant's dismissal on October 15, 2013.
The issues to be determined in this case are:
-
(i) Was the Claimant unfairly dismissed by the Respondent; and if so
-
(ii) What is the appropriate compensation to award the Claimant in the circumstances?
The Claimant testified that the Respondent employed him on June 2, 2002 as a night auditor.
The Claimant stated that on October 14, 2013 the Claimant reported for work at approximately 10:45 p.m. At that time and before he could commence his duties Ms Sandra Blenman handed him an envelope addressed to him. The envelope contained a letter suspending the Claimant with pay pending an investigation (the “Suspension Letter”). The Suspension Letter also indicated that the Claimant was to report for a meeting with Kathleen Gaskin, the General Manager of the Respondent (the “General Manager”) and Brenda Taylor, the Human Resources Officer of the Respondent (the “Human Resources Officer”) on October 15, 2013 at 12:30 p.m. The Claimant tendered a copy of the Suspension Letter into evidence as Exhibit WS 1.
On October 15, 2013 the Claimant attended at the General Manager's office for the scheduled meeting. The General Manager informed the Claimant that a guest had complained that he was asleep on duty when the said guest came to make a complaint about mosquito bites. The Claimant denied that he dealt with such a guest. The General Manager thereafter asked the Human Resources Officer to read a letter to the Claimant. The letter dated October 15, 2013 was in fact a termination letter (the “Termination Letter”). The Termination Letter begins by setting out a complaint made by a guest that was received on October 10, 2013. The complaint being that during their stay they had what they deemed to be an emergency during the Claimant's shift as Night Manager/Night Auditor and sought the Claimant's assistance. The Termination letter then states that the Claimant was found asleep in the reception lounge area. The Termination Letter then indicated that:
After investigating, it was confirmed by members of the night team, who are under your management, that it was common practice for you to position yourself in the lounge chairs between the hours of 2am – 5am.
This action displayed by you in your position as the Night Manager is totally unacceptable. It placed the property, our staff and our resident guest at significant risk.
As a result of the above, your employment is hereby terminated effective October 15 th 2013.
The Claimant was also presented with a Termination of Services/Lay-Off Certificate dated October 15, 2013 that stated as the reason for termination “Contract Terminated due to Negligence”.
In these circumstances the Claimant alleges that he was unfairly dismissed on October 15, 2013.
In response to the Claimant's claim the Respondent submitted a number of documents. The documents included:
-
(i) An email chain and attachment dated October 10, 2013;
-
(ii) Three (3) internal statements given by staff of the Respondent;
-
(iii) A copy of the Termination Letter;
-
(iv) A copy of the Suspension Letter;
-
(v) Various disciplinary documents issued to the Claimant between September 2004 and July 2010.
-
(vi) The Claimant's contract of employment dated June 14, 2002 together with the Claimant's Job Description signed as received on June 15, 2002 (the “Contract”); and (vii) The Respondent's Handbook signed as received on June 15, 2002.
It appears that the Respondent reproduced the Claimant's personnel file.
The Respondent formally tendered no written or oral evidence, though the Claimant's Attorneys-at-Law provided the Tribunal with draft Witness Statements of Kathleen Gaskin and Brenda Quintyne. To the extent that the Claimant submitted these Witness Statements to the Tribunal, the Tribunal could not properly consider them as evidence submitted by the Respondent. Accordingly, the Tribunal has placed no reliance on these documents.
Based on the evidence submitted, the unanimous finding of the Tribunal is that the Claimant was unfairly dismissed.
We must state here that at the start of this hearing Ms Verla Depeiza Attorney-at-Law acted on behalf of the Respondent. However, during the course of the hearing Ms Depeiza indicated to the Tribunal that she was unable to take instructions from the Respondent. As a result, Ms Depeiza asked to be removed from the record as Attorney-at-Law for the Respondent. Ms Depeiza was thereafter removed from the record.
As espoused by the Court of Appeal in Chefette Restaurants Limited v Harris Civil Appeal No. 11 of 2016, in determining whether or not the Claimant was unfairly dismissed, the Tribunal:
…must have regard to four conditions. These are (i) whether the employee has met the criteria in section 27 (3) necessary to qualify for the right in section 27 (1) not to be unfairly dismissed; if so, (ii) whether, pursuant to section 29 (1) and (2), the reason, or principal reason, for the dismissal of the employee, related to the employee's capability or conduct or to some other statutory reason that justifies dismissal; if the reason relates to capability or conduct, (iii) whether the appropriate statutory disciplinary procedures were complied with pursuant to section 29 (5); and if the reason for dismissal relates to reasons other than to the capability or conduct of the employee, or if the reason relates to the capability or conduct of the employee and the employer has complied with the procedural requirements in section 29 (5), (iv) whether the dismissal was fair under section 29 (4).
Section 27 of the Employment Rights Act states that:
-
(1) An employee has the right not to be unfairly dismissed by his employer.
-
(2) Subsection (1) has effect subject to the following provisions of this Part.
-
(3) Subsection (1) does not apply to the dismissal of the employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.
As it relates to the Claimant's length of employment, there appears to be a discrepancy as to the date of the Claimant's employment by the Respondent. The Claimant's evidence is that he was employed on June 2, 2002 though the Contract sets the date at June 15, 2002. To the extent that the Contract was signed as having been received by the Claimant, and there is no conclusive evidence to show otherwise, the Tribunal finds that the Claimant was employed from June 15, 2002.
The date of the Claimant's dismissal is clearer. The Claimant's evidence and the Termination Letter both show his employment came to an end on October 15, 2013. This is also supported by the documents provided by the Respondent.
The Tribunal therefore finds that the Claimant has met the necessary requirements not to be unfairly dismissed pursuant to Section 27 of the Employment Rights Act.
Section 29 of the Employment Rights Act states that:
-
(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.
-
Based on the evidence submitted by the Claimant and the information provided on behalf of the Respondent, it is clear that the principal reason for the Claimant's dismissal was negligence. However, the Termination Letter does not make clear what the...
To continue reading
Request your trial