IN THE INDUSTRIAL COURT. Between. And CORAM: Her Honour Mrs. L. Harris Her Honour Mrs. Y. Simon

Transcription

1 3 TRINIDAD AND TOBAGO: Trade Dispute No. 280 of 2008 IN THE INDUSTRIAL COURT Between STEEL WORKERS UNION OF TRINIDAD AND TOBAGO -Party No. 1 And KNIGHT INVESTMENTS LIMITED - Party No. 2 CORAM: Her Honour Mrs. H. Seale Her Honour Mrs. L. Harris Her Honour Mrs. Y. Simon - Presiding Member - Member - Member APPEARANCES: Mr. H. Thompson ) Labour Relations Consultant ) for Party No. 1 Mr. C. Winchester ) Labour Relations Consultant ) for Party No. 2 Dated: February 8, 2010 JUDGMENT Delivered by Her Honour Mrs. L. Harris Page 1 of 12

2 The Steel Workers Union of Trinidad and Tobago ( the Union ) has made a claim that Ms. Carminee Hardeosingh ( the Worker ) was constructively dismissed by her employer, Knights Investment Limited ( the Employer ) with effect from April 10 th The dispute was referred to the Industrial Court by Unresolved Certificate dated August 21 st Hearings into the dispute began on October 23 rd 2009 and ended on December 8 th Oral evidence was received from the Worker on behalf of the Union and from Mrs. Anjanee Advani, Human Resource Manager and Mr. Fred Donawa, Operations Manager, on behalf of the Employer. hereunder: The letter of resignation of the worker is reproduced 10 th April 2008 Mr. Sean Hadeed Chief Executive Officer Knight Investments Limited No. 36 Tissue Drive, New Trincity Industrial Estate Trincity Dear Mr. Hadeed, Re: Letter of Resignation I, Carminee Hardeo-Singh hereby tender my resignation as Manager from your Company with immediate effect. My decision comes as a result of the disciplinary action taken against me. It is Page 2 of 12

3 my opinion unjust and unfair, as I was not given a fair hearing. I was in the employ of your Company for the past nine (9) years until the 2 nd of April 2008 and there was never complaints and/or never has their been any disciplinary action taken against me. It is in my opinion that the disciplinary action taken against me is preposterous. Not only was I demoted from the position of Manager to Sales Clerk but I was transferred to an unreasonable location, i.e. Chaguanas. Further I would like to add that in all years of being employed with your Company I was never accused of anything, much less stealing. Further, I was never given a copy of the Inventory Report despite several pleads to obtain same nor was my request to have a recount done entertained. It is much regretted that I had to leave under these conditions but it is the only fit thing to do, to establish my utmost objection to the position against me as described in letter dated 7 th April 2008 addressed from the Human Resource Manager. Yours sincerely, CHARMINEE HARDEO-SINGH The Worker testified that she resided in San Fernando and that she was first employed as a part timer in May of 1999 at Francis Sports, Gulf City and was then transferred to Bio Fitness Gym in Gulf City as the Receptionist in She subsequently worked at Francis Fashion in Gulf City and on High Street as a cashier and in 2003 she was transferred to Francis Fashion, Gulf City as the Supervisor. Late in 2003 she was transferred to Francis Fashion, Page 3 of 12

4 Price Plaza in Chaguanas as the Manager and finally in May 2004 she was transferred to Francis Fashion Penal as the Manager. All of the aforementioned companies were owned by the Employer. As Manager she earned a monthly salary of $5, plus a commission on sales. The Worker testified that on April 2 nd 2009 Advani, Donawa and Arund Ramlal, Assistant to Donawa, visited the store. Advani advised her that $23, in stock was missing, and they were there to investigate. An inventory of stock was carried out sometime in March by the inventory team of the Employer but no employee from the Penal branch participated in the inventory exercise. At the meeting the Worker requested that there be a recount or that she be allowed to see the inventory report. Both requests were denied. The Worker was also questioned on that day with respect to the employment of family members at the store. She denied knowledge but admitted that in Penal everybody is more or less related and everybody has a different surname. She was again questioned with respect to the missing stock. She told Advani that she did not suspect anyone since she checked the bags of the staff before they left and suggested that the only way such a large amount could be missing is through transfer of goods or shoplifters. She again requested to see the report or have a recount. Advani told her that that would not make a difference. On that day she was suspended indefinitely pending further investigations. On April 9 th she received a letter bearing the same date, asking her to contact the Company hopefully with the understanding Page 4 of 12

5 that you will again be given deserving opportunities to be heard before an administrative decision is taken with regards to your future employment. It went on to ask her, to please avail yourself so that we can all effectively move on. She contacted the Employer and was told to come to a meeting the following day. At that meeting Advani advised her that she was being transferred to Chaguanas, was being demoted to a sales clerk and that her salary would be adjusted accordingly. She again asked for a copy of the inventory report but again received a negative response. She was then told that she could leave and to collect a letter on her way out. She collected a letter dated April 7 th The letter bearing the subject head Disciplinary Measure informed her, inter alia 1. that she was being relocated to the Main Road Chaguanas branch as a sales clerk, with the understanding that you will be paid in accordance with the related job position, 2. that she was responsible to repay the value of the items verified as missing, resulting from the inventory taken of which you are quite aware. The total cost of the missing items amounted to $23, and $ would be withdrawn from her wages each fortnight to liquidate this amount, 3. that the fact that she was suspended from April 2 nd until the present time, the suspension period must be considered part of the disciplinary action for the listed offence. During cross examination the Worker denied that she was interrogated by Donawa but that it was only towards the end of the meeting on April 2 nd that Donawa told her that if she came clean Page 5 of 12

6 they would be lenient towards her. She then responded that there was nothing for her to come clean about. She admitted that she was present in the store while the inventory took place but did not participate in the process. In response to the Court she stated that there never was an incidence of stock shortage at the store. She had seen previous inventory reports and there were no shortages. It was the norm that whenever the inventory team, during the stock-taking process, found any item missing or coming up short they would enquire and the matter would be investigated. However this was not done on the said occasion. She acknowledged that in the event of a shortage she was required to repay a percentage of the shortage. Advani stated that they had visited the store on April 2 nd to investigate an incidence of stock shortage. The Worker was told the level of stock shortage and Donawa went through the stock report with her but she was unable to explain the shortages. They then questioned all members of staff in the presence of the Worker. One sales clerk informed the investigating team that the Manager, the Supervisor and two trainee cashiers were all aware of what was going on in the store and that the two trainee cashiers were related. Advani testified that this was not in accordance with the Employer s policy which stated that relatives should not be employed at the same store. The Store Manager was aware of this policy. After all the workers were questioned everyone returned to the shop floor and Advani told the Worker to balance the two trainee cashiers who were then told that they were suspended. The Worker was also told to sign her time card and that she was suspended pending further investigation. She was suspended without pay. Page 6 of 12

7 Advani further testified that attempts were subsequently made to contact the Worker and that a letter was sent to her concerning the decision of Administration to remove her from the store and that she was going to be held accountable for the stock shortages. Eventually contact was made and a meeting was held. The following day the Employer received a letter of resignation which was accepted by the Employer. She insisted that the Worker was a participant in the stock count and that even after the count the Inventory Manager returned to the store and showed her the report and showed her the shortages. She stated that she was aware that the Worker at that time had asked the Inventory Manager for a recount which was carried out but the shortages remained the same. Donawa testified that on April 2 nd he complied with the request of Advani to visit the Penal branch to discuss stock shortages with the Manager. His witness statement substantiated the evidence of Advani. It also stated that the Worker was shown the inventory report and given the opportunity to review same, that she confirmed that she was aware that there were missing items documented in the report but she had no knowledge of the items. He informed the Court that he became aware of the suspension of the Worker and the other two cashiers one week later. With respect to the Employer s policy on stock shortages he stated that the Manager was held responsible and he/she was normally required to repay the full amount of the shortage. In supporting its claim of constructive dismissal the representative for the Union contended that the instant dispute bore all elements of constructive dismissal and that the conduct of the Page 7 of 12

8 Employer could be interpreted as repudiating the employment contract. Although the Employer said that they had no intention of terminating the services of the Worker, its conduct fell far from what was considered good industrial relations practices. He submitted that the Worker was never given an opportunity to defend herself since the meeting of April 2 nd was an investigation into the stock shortages reported by the inventory team, at the time no allegation was made against the Worker and she was told to go home pending further investigations. He further submitted that although the letter of April 9 th, inviting the Worker to meet, hinted that she would be given an opportunity to be heard, this did not happen. At the said meeting on April 10 th the Worker was given a letter (dated April 7 th ) which revealed that the Employer had already made its decision. FINDINGS OF THE COURT The Court accepts the Union s submission that constructive dismissal arises where the employer conducts himself in such a way that the employee can only interpret its actions as an intention to terminate the employment contract. In such circumstances the employee is entitled, with or without notice, to terminate the contract. The law and the doctrine of constructive dismissal have been addressed in several judgments of this Court. One such judgement -(Banking Industrial and General Workers Union v. BP Trinidad & Tobago LLC - Trade Dispute No. 138 of 2005 [pages 24-27] )- details the development of this doctrine from what has been considered the foundation judgement (Western Excavating (ECC) Ltd.v. Sharp[1978] ICR 221 -in which the Court of Appeal held that there must be a repudiatory breach of contract by the employer to Page 8 of 12

9 constitute constructive dismissal to the growth of the use of implied contractual terms based on reasonable industrial employment practices. In the instant dispute the conduct of the Employer upon which the Worker acted was embodied in its letter of April 7 th which outlined the disciplinary action that the Employer was taking. Before addressing the Union s claim of constructive dismissal it is important to examine the issues that gave rise to the disciplinary action. It was not disputed that the visit/meeting of April 2 nd was to investigate an incidence of stock/inventory shortage; the issue of the familial relationship of the two trainee cashiers was incidental to this. No notice of this meeting was given and at the end of it there was no conclusion as to the cause of the shortage. However, the Worker was suspended without pay pending further investigations. No evidence was offered as to the nature or results of these further investigations nor was the Worker called upon to answer any charge of stealing in spite of the allegation by the Employer that the Worker, without authority, had removed product from the store. The Court further finds that no evidence was provided with respect to the shortage. The inventory sheets did not form part of the Employer s Statement of Evidence and Arguments and given the Worker s denial that she was ever shown the sheets, serious questions arise as to the credibility of the Employer s evidence. Moreover, the Employer failed to bring the Inventory Manager to substantiate the evidence of Advani that he had discussed the shortages with the Worker and that a recount had also been carried Page 9 of 12

10 out, as she had requested. The Court therefore finds that, based on the evidence presented there can be no conclusion as to the cause, or even the existence of the shortage. However, even if it was established that there was a shortage, given the length of service of the worker, her unblemished record and the absence of previous incidents of stock shortages, the accepted policy of the Manager making good any shortage would have been an appropriate sanction. We now look at the conduct of the Employer in instituting disciplinary action with regard to the said shortages, for which you were not only responsible, but was verified by the staff members that even in their presence you would have illegally removed items from the store (letter of April 7 th ). The Employer having never given the Worker the opportunity to defend herself with respect to the charge of illegally removing the items proceeds to take the following disciplinary measures: transfers the worker to a job location several miles away from her home; demotes the Worker to the position of cashier resulting in a substantial decrease in salary and a significant change in status; transforms the suspension period (which was originally intended to facilitate further investigations) into a disciplinary measure, namely, two weeks suspension without pay; orders the Worker to repay the sum of $23, which represented the full value of the stock shortage. Page 10 of 12

11 The level of disciplinary action far outweighed the perceived transgression of the Worker. Indeed it was clearly a case of killing an ant with a sledgehammer. It has been held that a disciplinary sanction which is disproportionate to the offence, though carried out in accordance with the terms of the contract, can constitute constructive dismissal. In the case of (BBC v Beckett [IRLR1983]) the claimant was demoted as a result of one incidence of negligence, the Employment Appeal Tribunal found that the worker was constructively dismissed since the punishment was out of proportion to the offence, given the worker s long period of satisfactory service. We find that the Employer by its action repudiated the employment contract and that the Worker was justified in interpreting this action to be an indication that the Employer no longer wanted her to be their employee. Indeed the actions of the Employer resulted in a complete change in the terms and conditions of the Worker and showed that the Employer no longer intended to be bound by the contract. This dispute presented a classic example of constructive dismissal. However, a finding that a worker was constructively dismissed establishes only the fact of the dismissal. Ultimately it is still necessary to show that the dismissal was harsh, oppressive or not in accordance with the principles of good industrial relations practice to justify an order under Sec.10 (4) of the Act. In the instant dispute the Employer by its failure to advise the Worker of the listed offence and the consequential denial of the opportunity to defend herself, the application of three sets of punishment thereby evoking a situation of double jeopardy, its Page 11 of 12

12 failure to take into account her unblemished work record and finally, her nine years of service, defied all the principles and practices of good industrial relations in treating with the Worker. We therefore find that the constructive dismissal took place in circumstances which were harsh and oppressive and contrary to the principles and practices of good industrial relations. We hereby order the payment to the Worker of compensation in the form of damages of sixty-five thousand dollars ($65,000.00) on or before February 26 th Liberty to apply. Mrs. H. Seale Presiding Member Mrs. L. V. Harris Member Mrs. Y. Simon Member Page 12 of 12