Henry v Antigua Dairy Ltd

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: James, J.
• Judgment Date: 13 November 1978
• Date: 13 November 1978

Industrial Court

James, J. (Hearing Officer)

Henry

and

Antigua Dairy Ltd

Appearances:

Mr. C. Cumberbatch, Mr. H. Bass, Mr. L. Alexander and Mr. Bascus for the employer

Mr. Hudson Joseph, Mr. Zephenia Henry for the employee

Industrial Law - Unfair dismissal — Worker was dismissed for consuming finished product — Finding that the worker was dismissed without prior disciplinary action against him for an offence which by itself did not warrant dismissal — Dismissal unfair.

Case for the worker:

Cross Examination:

1 Under cross-examination the worker stated that he had access to all rooms and there was no specific time given him to clean the chill-room. He had attended the meetings of February 15th and April 27th, but never saw any notice in reference to the non-consumption of burst bags on the notice board. The worker never denied the accusations levelled against him. He stated that he was warned twice, once about leaving the door to the chill room open and the other he could not recall.

Summation:

• (i) There was nothing on the worker's file to prove that he was warned about anything prior to his dismissal on August 1979.

• (ii) There was no set time for the worker to enter and clean the chill room

• (iii) The matter of dipping the cup in the milk was not before us and that is irrelevant since the dismissal letter gives the reason as the consumption of a drink bag

• (iv) According to the agreement the worker must be verbally warned and then a final warning letter given before dismissal.

• (v) Whereas management said that workers should not consume burst bags, they were usually given to, pigs and this was what the worker was dismissed for. There was no offence committed and the worker should be compensated.

Case for the Company:

• (i) The production foreman stated that on August 9th 1978, he saw the worker pouring a drink into his cup from a bag that had already been sealed. The 20 oz. cup was approximately ³/₄ full and each drink bag contained 16 ozs. On seeing this he inquired of the worker how many times had management warned him about using finished products. The worker replied that the bag was burst. The foreman then informed him that even though it was a burst bag he had been told on more that one occasion by management that the consumption of burst products or anything else was prohibited and in fact there was a notice on the board to that effect for over a year. The foreman further inquired on whose authority he had entered the chill room and was told that the electricity was off so the worker went into the chill room and took a bag.

• (ii) Management stated that the worker had no authority to enter the chill room until 3.00 p.m. when the foreman would ask for a count of the burst products for his records and then the chill room would be scrubbed and locked down. No cleaning was done in the chill room until after three.

• (iii) Management also said that the foreman took the worker to the manager and explained the incident and further complained that he had dipped a cup into saleable milk. The worker informed the manager that the drink bag was burst and admitted to dipping the cup into the milk. The manager informed the worker of the seriousness of the offence and that he would consider the happenings and the worker should report to him on Friday.

• (iv) Management further stated that on Wednesday 9 ^th August 1989 the worker on leaving the manager's office became very rude insolent and abusive so he was asked to report to the manager again, and when the manager questioned him about the remarks the foreman said he had directed at him he admitted he had done so. He was again told to report on Friday.

• (v) Management also said there was no reason for he worker to enter the chill room at the time as processing had just begun and there was no cleaning to be done.

• (vi) The manager explained that at the end of the last financial year the auditors found that about 800 pints were being written off weekly at a cost to company of about $10,000. Upon examination it was observed that production workers, the cleaner included were consuming products at break, lunch and other times.

• (vii) A meeting was held on February 15 ^th 1978 with the cleaner and production workers, with the manager explaining the situation. He requested that the practice of consuming burst drink bags be stopped and bought a tumbler for ever member of staff and instructed them that only product from the machine should be used and that no worker should consume product that had already been recorded and placed in the chill room.

• (viii) It was found that workers still took bags and poured them into their cups, thus another meeting was called on April 27 ^th 1978 and it was explained again that burst bags should not be consumed. This reinforced a circular of March 19 ^th that had been placed on the notice board.

• (ix) On August 9 ^th the foreman brought the worker and explained the he had been caught consuming a drink bag and also he had been caught dipping from a...