Philio v R.K. Luke & Sons

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: James, J.
• Judgment Date: 30 March 1978
• Date: 30 March 1978

Industrial Court

James, J. (Hearing Officer)

Philio

and

R.K. Luke & Sons

Appearances:

Industrial Law - Dismissal — Worker was dismissed for giving away 2 cartons of catalog paste — Decision that it was not without justification that such a charge was levelled against the worker — No substantial evidence to indicate that it may have been done by another employee — Dismissal fair and should stand.

1 Mr. Baldwin Spencer, Mr. Shelly Philo for the worker

2 Mr. Time Kendall, Mr. R. K. Luke for the employer

Preamble:

3 In accordance with the provisions of “section 116 (2)” of the Antigua Labour Code this matter was referred on January 12th 19'78 by the Honourable Minister of Labour, for formal handling by Hearing Officer, the dispute being heard under the provisions of Section C Part 5.

Case for the Employee:

4 The case for the worker was presented by Mr. Baldwin Spencer.

5 Mr. Spencer stated that the worker, Shelly Philo had been employed for approximately 6 years and 10 months as a clerk with R. K. Luke and Sons.

6 On November 19th 1977 the worker reported for work as usual and at about 9:15 a.m. he was called by Mr. Luke and was told that he had seen the worker give away two packets of catalog paste on November 18th.

7 The employee was then told to either find the duplicate in the cashbook or the money for the items he had given away.

8 Philo told Mr. Luke that he did not give away anything.

9 Mr. Luke reiterated that he saw the worker give away items.

10 Philo then asked him if that was so why didn't he stop the man to whom it was claimed he had given items.

11 Mr. Luke claimed he was satisfied that the employee had given away items thus would dismiss him. This Mr. Luke did.

12 The worker is adamant that he did not deliver any catalog paste to anyone on the day in question. He could recall delivering a louver glass to a customer, which was recorded in the relevant document and paid for in the normal manner.

13 Mr. Spencer continued that the basis of the accusation levelled against the worker by Mr. Luke is without foundation because it cannot be conclusively proved that this alleged incident did take place. In addition we seem to have an unsubstantiated claim that an employee committed an offence, thus could the words of the employer lead to a situation where an employee is summarily dismissed.

14 Under the circumstances Mr. Spencer said he could not agree that the dismissal had any justification. It was the words of the employer vs. employee and there is a very strong element of doubt as' far as the employer's proving his case is concerned. Thus the dismissal is unfair and the employee should not have lost his job.

Case for the employer:

15 Mr. Luke gave evidence in the presentation of the case for the employer.

16 He stated that numerous complaints about the worker had been received from customers concerning theft. On several occasions he carried the worker upstairs and questioned him, but he was always reluctant to answer or denied the allegations.

17 On the day in question Mr. Luke said he was sitting about 4 yards from the counter in a cage and had a vantage view of the whole counter. He was posting in his ledger and would intermittently look across the counter.

18 On one of these occasions he saw the worker, Philo bring three items (a) louver glass (b) two 41b packets of Catolog Paste. Mr. Luke explained that the Catalog paste were perishable articles so the senior clerks usually kept a check on the stock.

19 Continuing Mr. Luke said that the worker stood for about four minutes when he delivered the items and as soon as the customer turned away he called his chief clerk and inquired how it was that he had said the items (Catalog paste) were not moving, when he (Mr. Luke) had just seen two go out. He further inquired if they were still moving slow and the clerk replied yes.

20 Nothing was said to anyone else on the matter because as Mr. Luke explained, he had introduced cash sales books to each clerk and these were used until they were finished, then another would be given.

21 The shop closed for lunch as usual end on resumption Philo brought the finished cashbook. His wife was present and after she left Mr. Luke said he examined the book and found that the only thing that was listed was sales for louver glass. The worker was told nothing because as Mr. Luke said he had given another book and it could have been entered there.

22 Mr. Luke stated that he checked the cash himself that afternoon and it balanced. He inquired from the senior clerk the Thursday stock for Catalog haste and was told it had been four. Friday's stock of Catalog paste was two.

23 Mr. Luke went on to state that he further checked all the cashbooks and there was no record of Catalog paste bund. He then called Philo and asked him to produce the slip and money for the two packets of Catalog paste that he had seen him give to the customer.

24 Philo then asked him why didn't he stop the man.

25 Mr. Luke replied that if he had done so both would lave been behind bars.

26 Mr. Luke then dismissed him.

27 Mr. Kendall then produced Philo's cash sales book for November 18th 1977 and displayed several cash slips, which were for louver glass. He then asked Mr. Luke if his customers consisted of men only to which the reply was no.

Cross Examination:

28 Mr. Spencer cross-examined Mr. Luke on the evidence given.

29 Mr. Luke confirmed that he was sitting about four yards from the counter and that because the worker was not under suspicion he did not say anything to him but instead drew the chief clerk's attention to the incident. This was about 9:00 a.m. and it was not until the next day that anything was said to the worker concerning the incident when Mr. Luke called him and asked him to present either the money or cash slip for the Catalog Paste.

30 Mr. Luke also confirmed that he did not check the stock himself but took the word of his senior clerk who had asked to investigate the amount of stock.

Summary for the employer:

31 Mr. Kendall summed up the case for the employer.

-Mr. Kendall stated that there was no doubt that Philo as a servant for Mr. Luke, while on duty gave away two cartons of Catalog Paste which belonged to his employer, Mr. Luke and was thus guilty of misconduct within the...