Carr v West Indies Oil Company Ltd

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Lewis, P.
• Judgment Date: 27 January 1978
• Docket Number: No. 13 of 1977
• Date: 27 January 1978

Industrial Court

Lewis, P.; Clarke, J. (Vice President); Caines, J. (Member)

No. 13 of 1977

Carr

and

West Indies Oil Co. Ltd.

Appearances:

J. Fuller (Solicitor) for employee/claimant

Miss Bernice Lake (Solicitor) for employer/respondent.

Industrial law - Termination of Employment — Dismissal. for alleged theft

Lewis, P.

1 the employee up the 5 ^th may, 1976 was in the service of the west indies oil company ltd. (hereinafter called the acompany”) as an assistant launched driver in the company's marie division. on this date, as pleased in paragraph 2 of his memorandum, the employee awas orally suspended without pay from his said job pending an investigation into allegations by the respondent (i.e. the company) of theft by the claimant (i.e. the employee) of paint and eggs, the property of the respondent.” the reasons for the employee's suspension were put into writing conveyed to him by a letter dated 6 ^th may, 1976, written by mr. oliver flax the senior personnel officer of the company. in this letter, the employee was told, inter alia, that if the investigation revealed that he had not stolen the eggs or the pain he would be re-instated without loss of pay, but if on the other hand it was established that he would be dismissed from the company's service.

2 We know from the evidence of Denley Nibbs, an engineer in the Marine Division of the company, who deals with personnel matters in that Division, and also from the evidence of James Thomas who as the Secretary/Treasurer of the company at the material time, and, as such, responsible for all the company's financial and administrative operations, that an investigation was held into the allegations of theft made against the employee. Mr. Nibbs in his evidence stated that the investigation referred to in Mr. Flax's letter was an internal one and that it took place on 5 ^th May in the office of the Marine Division just after 8. a.m. that day. The employee was present at the investigation and so was the witness Nibbs. Nibbs said as follows:–

“Thee was a discussion between Oliver Flax, Boysie Carr and myself that morning in the office. A report had been made to me about some eggs and paint, and it was, as a result of this report, that I was having a discussion with Boysie Carr. I was questioning him about the eggs. I told him that Mills had said that he, Carr, had taken 5 dozen eggs from the fridge and two loaves of brad and that he had hidden them on the launch. Carr replied to me and said he was only making a joke. In had no further discussion with Carr relating to the eggs. Oliver Flax asked Carr about the paint. Carr replied and said >everything that is missing around here is me. I know nothing about the paint.”

3 At the end of his investigation Mr. Flax made a report to Mr. James Thomas who, as a result of the report wrote a letter dated 3 ^rd June, 1976 to the employee dismissing him from the employment of the company with effect from the date of his suspension, i.e. 5 ^th May, 1976, and the reason given in this letter for his dismissal was that he had stolen property belonging to the company. It was of course Mr. Thomas' duty as the person responsible for the company's financial and administrative operations to make a decision as to whether or not any disciplinary action should be taken against the employee, and having accepted Mr. Flax's report recommending the employee's dismissal, he did so in the letter of 3 ^rd June, 1976 referred to above. The disciplinary proceedings followed the procedure laid down in article 22 of the Industrial Agreement (exhibit R.E.S.2) between the company and the Antigua Workers' Union which represented the employee.

4 It is common ground that the employee put five dozen eggs on board the launch on which he and other persons were about to travel to what he describes as “the sea island bunkering station” and what other witnesses refer to as “the anchored barge.” These two expressions refer to one and the same object, viz. the anchored barge named “Bunker Antigua.” as we understand it, the employees story is that he say eggs and bread on the dock near the store-room door when he arrived for work on Saturday 1 ^st May, 1976; that it was the custom of the cook, Vernon Mills, to put stores which were to be taken to the bunkering station either on the launch going to the bunkering station or on the dock to be later taken to this launch. He further said that when he was the eggs on the dock, he took them up and carried them to the launch where he placed them on the lower roof of the launch; that George Matthias, Charles Bridgewater and Fabian Phillip were on the launch at the time when he put the eggs on the lower deck thereof, about 2 feet from them, and that they saw when he did this. He did not call any of these men as witnesses on his behalf because Charles Bridgewater had gone to the U.S.A. and Fabian Philip had gone sailing on a ship, and neither was in Antigua. He admits, however, that George Matthais is still is Antigua with the company.

5 The employee's contention is that he did not steal the eggs, he merely took them to the launch for use by the men who were to stay as watchmen on the bunkering station, and this he says is supported by the fact that he put them on the roof of the launch in full view of the three men whose names he has mentioned, and about fourteen other persons who were present at the dock. The employee's statement that he put the eggs on the roof of the launch is supported by the witness St. Clair Perry who said in cross-examination:– “I saw Boysie took the eggs to the launch and put them on the roof of the launch. He put the eggs in the open.”

6 Mr. Vernon Mills who is employed as a cook by the company usually has in his charge stores belonging to the company which he keeps in three lockers in the store-room on the east side of the Marine Division of the company which is situate on Bryson's Wharf. On the morning of the 1 ^st May, he had a gross of eggs in the fridge in the store-room. He had put the eggs there on the previous day. We know from his evidence that there were twelve boxes of eggs, each containing twelve eggs and although he did not say this specifically, it can be inferred from his evidence as a whole. He denies putting any eggs or bread outside the store-room door on the morning of the 1 ^st May, 1976 and so challenges the statement by the employee that he found the eggs and bread on the dock near the store-room door. The cook's evidence on the contrary, is that he left the store-room which is apparently on the east side of the Marine Centre and went around to the west side “to call the watchman for him to choose what stores he would he would like to take to the anchored barge. The watchman had to go and stay on the anchored barge to look after it, and he and another man were to remain to the anchored barge for 24 hours so they had to take stores for their meals. So, if we accept this piece of evidence, which we do, there were only two men who were doing to stay on the anchored barge for 24 hours, and the five dozen eggs which the employee put on the launch were intended to be used by these two men for their meals during this period. Mr. Mills says that on his way back to the store-room, after speaking to the watchman, and before he had reached the store-room, one St. Claire Perry beckoned to him and told him something. After Perry had spoken to him he went and checked the eggs and found that five boxes were missing. He then wen towards the launch where he met Boysie Carr, the employee, and spoke to him saying:–

“Boysie, you can't do these kind of things man. I alone have the key, and when they come and check they will say that I waste the things or something like that. Boysie, said, AThis is last lap and he take for he!”

7 The witness continued his evidence as follows:–

“I then left Boysie and went to the launch where I saw five boxes of eggs and two loaves fo bread. When I saw Boysie I said to him “Boysie man, you should not take up the eggs them because when they come and check they will think that I am wasting the stores.’ When Boysie said ‘This is last lap’ I understood him to be referring to a change in company policy which was about to take place. This was the last week in which the company would be supplying food to workmen. In future it would give us cash for our food.”

8 Mr. Mills' statement that he did not put eggs or bread outside the store-room door is supported by the evidence of St. Clair Perry, who says that he was standing by the store-room which is on the east side of the Marine Centre; that he saw Mills leave the store-room and go west; that while Mills was away he saw the employee go into the store-room, open the fridge, take out five boxed of eggs and carry them to the launch together with some bread. On Mills return to the store-room St. Clair Perry had a conversation with him and presumably told him what he had seen the employee do. Perry says that...