Richards v A.S. Brydens (Antigua) Lltd

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: James, J.
• Judgment Date: 30 January 1979
• Date: 30 January 1979

Industrial Court

James, J. (Hearing Officer)

Richards

and

A.S. Brydens (Antigua) Lltd.

(3) Appearances:

A. For Worker:

Mr. B. Spencer -Assistant General Secretary A. W. U.

M. V. Richards - Worker:

B. For Employer:

Mr. C. Cumberbatch -Director, Employers' Federation

Mr. C. Lynn -Manager.

Mr. H. Thomas - Financial Controller A. S. Bryden (B'dos).

Mr. C. Thomas - Warehouse Clerk.

Industrial Law - Summary dismissal — Dismissal letter notified worker of his immediate dismissal and stated as the reason unsatisfactory performance of duties even after repeated warnings — Ruling that although it was necessary that some form of disciplinary action be taken the circumstances did not warrant summary dismissal.

(4) Place and date of Hearing: Labour Department, 30 ^th Jaunary, 1979.

(5) Case for the worker:

(6) Cross Examination:

1 The worker confirmed that someone had to accompany him when he entered the warehouse. The warehouse clerk was aware of this situation and had called out to the stock clerk who informed him that he was busy.

2 Everyone downstairs including the van salesmen had received letters. The worker considered himself normally as were his other co-workers.

3 The verbal warnings spoken about were incidents when a customer may have been waiting for some goods and he was asked to speed up delivery.

4 The worker could not say if goods were delivered between 9:45 and 11:45 on Thursday, however, it normally would have taken him about 2 minutes to fill the bill if he had free access to the warehouse. The new security measures had definitely slowed down the flow of goods.

5 He could not say if the matter was reported to the manager or if he inquired about it.

(7) Summary:

6 The dispute centers around the issue of whether under the circumstances the worker was fairly dismissed - did the alleged action of the worker warrant summary dismissal.

7 In July 1978, the manager wrote letters to a number of employees indicating his dissatisfaction with their performance. In that letter he proceeded to identify what might have been the reason for the workers abnormal performance-negotiations for a new collective agreement. Between 12 ^th July and 11 ^th August it was borne out that workers on some occasions worked abnormally and that it could not he confirmed that the worker was verbally warned by the manager after 12 ^th July. On at least one occasion the manager spoke to all the warehouse workers concerning their performance, but there is no positive evidence between that period to show that the worker acted more abnormally than other workers.

8 There are conflicting views on a number of things.

• (i) Procedure-the worker is adamant that the procedure in relation to accompaniment was in force at the time of his termination. The warehouse clerk said no.

• (ii) Was the worker engaged in any other work that morning? - The worker pointed out that along with two other workers he was engaged in other activities and is adamant that he did perform work in stationary room and toilet.

9 This specific order was not urgent and there are times when there are rushy periods and slow periods and this was a slow period. If the order was urgent it would have been filled by someone else, but it was the following day that this was done.

10 The dismissal letter states - it has been reported to me by Mr. Thomas that you were instructed to bring out 10 cases Macaroni and after three hours had elapsed, you only brought out I carton of Macaroni. This is saying that Mr. Thomas went to the manager and told him that he had given the worker the order and in 3 hours he had only taken 1 carton. According to the warehouse clerk's testimony it was the following day that he purportedly told the manager about the incident. If he was in the warehouse and that for 3 hours the worker had only brought out 1 c/s and did nothing about it then the warehouse clerk must be also involved himself.

11 Did management act reasonably in instantly dismissing the employee? They behaved inconsistent in their disciplinary action for the same offence as other workers had to be disciplined for the same offence after 11 ^th August and were not dismissed. The union then cited Section C 60 of the Antigua Labour Code stating that the dismissal was unreasonable, harsh and oppressive and thus the worker should be adequately compensated for such action.

(8) Case for the Company:

• Negotiations were in progress around 12 ^th July and had reached a deadlock around the table. At that stage before the matter could be referred to the Labour Department the union wrote the company informing them that collective action would be taken. The porters only, decided to institute a go-slow. The company wrote them individual letters and for a day or two work returned to normal. Within a few days of the warning letters the involved worker only re-instituted his go-slow action. The manager spoke to him on several occasions about his attitude culminating on August 18 ^th with the workers dismissal.

• (ii) The warehouse clerk claimed that around a few minutes after 9:00 a.m. he gave the worker an order for 10 c/s Macaroni so that he could go and fill it from the warehouse, however at 12 noon only I c/s had been brought out.

• (iii) The following day the manager inquired about who was filling the order and was informed that it was the involved worker. He further asked how many had been taken out and was told 1 c/s. He went to ask if the was involved in doing any other work and was told no.

• (iv) It was explained that macaroni was stored in the 2 ^nd lane in the warehouse and one would have to enter small gate to get into the warehouse. The gate was always open as it was the first thing that...