Forde v Joseph Dew & Sons

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: James, J.
• Judgment Date: 23 March 1979
• Date: 23 March 1979

Industrial Court

James, J. (Hearing Officer)

Forde

and

Joseph Dew & Sons

(2) Issue: Unfair Dismissal.

(3) Appearances:

(i) For Employer:

Mr. C. Cumberbatch - Director Antigua Employers' Federation.

Mr. T. Thomas -Chairman, Antigua Employers' Federation.

Mr. H. Bass -Employers' Federation.

Mr. P. Williams - Managing Director Joseph Dew & Company.

Mr. N. Walling - Secretary, Accountant Joseph Dew & Company.

Witnesses:

(ii) Mt. Vernon Faustain - Sales Manager.

Mr. Bradley Samuel - Agency Manager

Mr. Robert Tittle - Director.

(iii) For Worker:

Mr. J.T. Rose - General Secretary, Antigua Trades & Labour Union.

Mr. W. F. George - Industrial Officer, Antigua Trades & Labour Union.

Mr. L. Forde - Worker.

(iv) Mr. Nehemiah Morris - Porter.

Mr. Jerome Edwards - Porter.

Industrial law - Unfair dismissal — Worker was dismissed for his refusal to drive as instructed — Judgment that summary dismissal at the point of discussing the matter with the Managing Director was harsh even though some sort of discipline was necessary — Awarded $1,380.00.

(4) Place and Date of Hearing: Labour Department; Friday 23 ^rd February, 22 ^nd and 23 ^rd March, 1979.

(5) Case for the Worker:

(6) Cross Examination:

1 The worker had refused to drive the truck because it had too much load. He did not know if the pick-up was driven with that load or it made the journey safely. He stayed with the Managing Director for about 10-15 minutes and was then told to return to work and on his return he did not refuse to work.

2 After he was told to leave the premises the worker and the shop-steward went to see the Managing Director. No serious discussions were held and the meeting, was adjourned for the next day. At no time in this meeting did the Managing Director indicated to the worker that he was dismissed.

Witnesses: Nehemiah Joseph (1):

3 The witness was given some orders by the Agency Manager, which he picked out and placed on the landing. He then requested the worker to go for the pick-up, but one was under repairs. There were a lot of goods and the loading began. After loading a big order for the near-by Market the worker suggested that as the pick-up was not working properly, that the order should be delivered then he would return for the others. The Manager then told the worker that he had been perplexing him for the longest while, and if he did not want to work then he should stay at home. He, instructed the porters to continue the loading and this, they did. The worker further told the Manager that it had peen a long time that he had been telling him about the steering of the pick-up and he again suggested That the goods on the truck be delivered first.

4 The loading was completed, then the Manager called the worker and told him to make the delivery, but he replied that he did not believe he would be able to control the pick-up with that quantity of goods. The Manager then made a telephone call to the Managing Director, left the Agency and then went upstairs, When he returned he told the worker, that the Managing Director said he should leave the premises. The worker, inquired, what did that mean and he was told to go to the Managing Director to find out. The Sales Manager was then asked to make the delivery.

5 (iii) The Sales Manager did not agree that the pick-up was overloaded and as a matter of fact it took on more load and no problem was experienced, besides the pickup had been loaded more than that on other occasions.

Cross Examination:

6 The Sate Manager could not recall hearing the worker complain to Management of bad steering. Both pick-up were in good running order, but the Chevrolet was easier to drive as it was automatic.

Bradley Samuel, Manager (Agency):

• (i) Around 3 p.m. on the day in question the porters began to load the pick-up and the worker began to give instructions as to what order should be placed on the van first as he claimed that it was being overloaded. He was told that he was a nuisance in the department and that the pick-up had carried much more and he had driven it.

• (ii) The loading continued and when it was finished the cash slips were handed to the worker, but he refused to take them. The Manager asked him if he was refusing to drive and he said yes. The Sales Manager who was present also persuaded him to continue his work, pointing out that the pick-up was loaded below the maximum weight it could carry, but he still refused.

• (iii) The matter was then reported to the Managing Director who asked that the worker be sent to him. When the worker returned he began to make threats so again the matter was reported to the Managing Director who explained that the worker had no right there and he should leave the premises.

• (iv) At the office the Manager explained to the Managing Director what had happened and then left. The pickup had carried more load than that and the worker had bluntly refused to drive. He had been very trouble-some and had given similar incidents of trouble for which he had been warned ‘on many occasions and several complaints had been made about the way he drove.

Bradley Samuel, Manager (Agency):

Cross Examination:

7 When the Manager went to the Agency Department the worker was a porter, but he recommended that he be promoted to a driver. Over the past year he has been giving trouble and minor reports have been made about it.

8 The worker has never complained of the pick-up being hard to drive. When he was called and given the four slips he refused and said he did not think he would be able to drive the pick-up. The Manager called the Managing Director and he asked that the worker be sent to him. In the Managing Director's office the worker had already explained his story before the Manager got there and as the Manager was explaining the position he attempted to interject from time to time. When he spoke with the Managing Director on the phone the second time he understood that the worker was dismissed but he did not convey the message to him.

Robert Title, Driver:

9 The driver explained that he had driven all the company's vehicles at some time or the other and late last November the pick-up had just returned from the shop so it should be in a good condition.

Cross Examination:

10 Under cross-examination the driver said that the pickup had just returned from a general overhaul. Theca was no special defects, but just a routine check.

Mr. Peter Williams, Managing Director:

• (i) The Managing Director stated that on the day in question, the Manager (Agency) telephoned him and explained that he had handed some slips to make some deliveries and he had refused. He instructed the Manager to send the worker and he should come along himself.

• (ii) The worker came and stayed for about 15-20 minutes during which time he explained that the pick-up was overloaded and it would be difficult to drive as it swerved. The Managing Director explained that he persuaded the worker to go and drive, but he bluntly refused. He told the worker that the instructions were legitimate and within the course of his duties, but he again refused to drive.

• (iii) The Managing Director asked the Manager to explain what had transpired. He said that the worker was lying around during the loading and when it was completed he called the worker and handed him the slips but he said he was not driving. The Manager left and the Managing Director said he again appealed to the...