Forde v Joseph Dew & Sons

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Mr. Cuthbert Prince,Mr. Laurence Maynard,Mr. St. Lawrence DeFreitas
• Judgment Date: 29 November 1979
• Date: 29 November 1979

Industrial Court

Prince, J. (Chairman); De Freitas, J. (Member); Maynard, J. (Member)

Forde

and

Joseph Dew & Sons

(1) Parties to the Dispute: LLEWELLYN FORDE vs JOSEPH DEW & SONS

(2) Issue: Unfair Dismissal.

(3) Appearances:

(i) For Employer:

Mr. C. M. Cumberbatch, Director.

Antigua Employers' Federation.

Mr. Peter Williams, Managing Director

Joseph Dew & Co.

Mr. N. Walling, Secretary, Accountant,

Joseph Dew & Sans.

(ii) For Employee:

Mr. Wigley George, Industrial Officer

Mr. Llewellyn Forde Employee.

Industrial Law - Unfair dismissal — Hearing Officer ruled that the worker was dismissed for his refusal to drive as instructed — Whether the vehicle was incorrectly loaded and/or overloaded so as to make the operation of the said vehicle unsafe to operate — Held employee's refusal was justified and must be protected — Dismissal unfair — Awarded $1,380.00.

(4) Members of the Board:

1 (i) Mr. Cuthbert Prince – Chairman.

2 (ii) Mr. Laurence Maynard – Member.

3 (iii) Mr. St. Lawrence DeFreitas – Member.

4 We were appointed a Board of review in the appeal against the Hearing Officer's decision in the matter between Llewellyn Forde (hereinafter referred to as the Employee) and Joseph Dew & Sons (hereinafter referred to as the Employer). We convened at the Labour Department on the 29 ^th November 1979 and heard arguments on the appeal from both sides.

5 On the 27 ^th November 1978, the Employee, whose Job Classification was Driver/Porter was required to make certain deliveries in one of the Employers' vehicles.

6 From the recorded evidence of the Sales Manager – Mr. Vernon Faustin, we learned that from the very onset the Employee was concerned about the way the vehicle was loaded and the quantity of load placed on the vehicle. Mr. Faustin said, quote: “The worker was directing the packing of the goods because he claimed that when a lot of load was placed at the front, the pick-up was hard to steer.” – unquote. Mr. Faustin's evidence also revealed that the Employee's instructions (as to how the vehicle should be best loaded) were ignored. It should be noted that by his very evidence he, as Sales Manager, at all material times had knowledge of this.

7 From the Hearing Officer's Report, we are told that at some point during loading, the Employee requested that the loading should cease and that he be allowed to make a second delivery – this request was denied and the loading continued.

8 When the loading was completed, Mr. Faustin ordered the Employee to make the delivery – at this point we are told that the Employee refused to drive the vehicle on two basic grounds:

• (a) The vehicle was improperly loaded.

• (b) The vehicle was overloaded

9 From the evidence of witness Mr. Jerome Emmanuel we are told that, quote: “The pick-up was full, but loading continued. The worker then said to the Manager that as the pick-up was full what was there could be delivered on another trip”. – unquote. We are also told by this witness that when the Employee was ordered to make the delivery, the employee replied, quote: “That he did not think he would be able to manage to truck with all that load'' unquote.

10 From the evidence of witness Mr. Nehmiah Joseph we are told that, quote: “After loading a big order for the nearby market the worker suggested – the order should be delivered then he would return for the others” unquote. Again we find that after the Employee was ordered to make the delivery he told the Manager, quote: “He did not believe he would be able to control the pick-up with that quantity of goods” unquote.

11 From the evidence of witness Mr. Bradley Samuels – Agency Manager, we find that he confirms Mr. Faustin's evidence that the employee attempted to give instructions as to how the vehicle should be loaded and he also substantiated all of the other witnesses in that the Employee claimed that the vehicle was being overloaded.

12 Consequent upon the Employee's refusal to make the deliveries, the Managing Director was notified and the Employee was summoned to his office.

13 From the evidence of Mr. Peter Williams – Managing Director, we learned that the Employee explained that the pick-up was overloaded and it would be difficult to drive as it swerved.”

14 There was no letter of dismissal but the Hearing Officer, in his report, ruled: that,“The worker was dismissed for his refusal to drive as instructed by the Agency Manager.” This Board accepts this as the...