# IN THE MATTER OF THE EMPLOYMENT ACT 2000 BEFORE THE EMPLOYMENT AND LABOUR RELATIONS TRIBUNAL (the "Tribunal")

## BETWEEN

Deanna Fox Complainant

AND

Employer Defendant

## DECISION

Date of Hearing: 6th December, 2022

Present:

John Payne, Tribunal Chairman, Jocene Steed, Tribunal Member Orin Simmons, Tribunal Member

Deanna Fox, Complainant Bruce Swan, Counsel for the Complainant

1. This matter was referred to the Employment & Labour Relations Department on 16th March 2022 and to the Tribunal on 10th August 2022. The Parties submitted statements from witnesses however these were not sworn.

## Issue

2. The Complainant is seeking redress for unfair dismissal under section 40 of the Employment Act 2000.

## Background

3. The Complainant was employed by the Employer from 23 November 2020 until 25 January 2022 as a working supervisor. During this period she was responsible for opening the business in the morning. The Complainant previously worked for a now defunct business operated by the Employer and others.

4. On the day in question it is alleged that the Complainant's behaviour was erratic. She was banging utensils and talking in a loud sometimes incoherent manner. It is claimed that on more than one occasion that morning, she threw or unprofessionally gave food to customers. The Complainant was approached by the Employer after he received complaints from both staff and next door vendors about her behaviour. When she refused to leave the premises, the Employer summoned the police.

5. The Complainant left the premises after a conversation with the police officer. The Employer then closed the business for the day.

## The Case

6. The Tribunal took note of section 38 Hearing of complaints by Tribunal in particular subsection (2) which states: In any claim arising out of the dismissal of an employee it shall be for the employer to prove the reason for the dismissal, and if he fails to do so there shall be a conclusive presumption that the dismissal was unfair.

7. The Employer was directed to present their case first.

## Case of the Employer

8. The case of the Employer was presented by one of the owners. He indicated that he had known the Complainant for many years when she was employed in a now defunct company that he had been a part owner. That Company stopped trading in March 2020 due to the negative impact of the COVID-19 pandemic. In July 2020 he formed another company and invited several of the staff from the former company to join him. The Complainant being one of those persons.

9. He indicated that the new company opened on 23 November 2020 and that the Complainant had been engaged for 14 months. During the early period of operating business was slow and he had to reduce the hourly rate and work hours of staff.

10. The Complainant was a good worker but could at times display unacceptable traits. The Employer indicated that in recent weeks the Complainant's behaviour had changed "she began acting in a way that I certainly had never experienced before which included making random loud noises, being extremely aggressive to the vendors when they were making deliveries".

11. He further stated "The behaviour was such that he had no choice but to give her a formal warning letter which I had every intention of giving her on the day".

12. The Employer further evidenced that on the day in question on arriving to work staff warned him about the complainant's behaviour being out of control. He then approached the Complainant advising her to "cool down" and that he had a warning letter for her. He stated that her behaviour became more erratic after. He invited her to the office and she refused.

13. When she refused to leave the premises he called the police for assistance.

14. He claimed that after she left persons approached him indicating that she should have been terminated a long time ago because of her unprofessional behaviour.

15. That her serious misconduct on January 25th 2022, had a detrimental effect on the business was the reason she was terminated.

16. The Employer then called two witnesses:

### Witness 1

17. Her business is located directly across from the Employer's establishment. Both establishments are open plan and a person can look directly into each. She advised that it is a regular feature for the Complainant to be loud and often joking with others. However, on the morning in question the Complainant seemed a bit agitated and was shouting; her voice got louder and she was banging on the counter and cursing. The behaviour was not right. However, the Witness stated this was a one off occasion.

18. She advised that the two chefs for the Employer were standing to the side as if they did not know what to do. She gave a statement to the police officer who came.

19. During cross examination the witness advised that in addition to her there were the two chefs; there were the Complainant and possibly one or two customers in the store. That the event lasted between 30 and 40 minutes. The comments made by the Complainant were not directed at any particular person. She seemed to be talking to herself.

### Witness 2

20. This witness indicated that she was a customer at the store on the 25th January. She greeted the Complainant when she went to pay for her sandwich and the Complainant was making comments. The Complainant appeared to throw the sandwich at her. The Complainant's demeanor was as if she wanted to cry.

21. The Witness indicated that she was a frequent customer and she had never had that experience before.

22. On Cross examination, the Witness indicated that the mumbling from the Complainant was pretty loud. She did not believe that the comments were directed at her. While the Complainant may not have thrown the food the manner it was passed was not acceptable. That in the past the Complainant's service and behaviour was generally pretty good.

## Case of the Complainant

23. The Counsel for the Complainant in his opening statement indicated that the Employer had other options than dismissal when a staff member's behaviour is unacceptable.

24. He claimed evidence showed that the behaviour by the Complainant was outside the box and whenever in the past her behaviour was inappropriate it would eventually return to normal. Indeed when the police arrived the Complainant's behaviour was normal. Hence further disruption to the business was averted.

25. Counsel for the Complainant indicated that they were seeking proper compensation for unfair dismissal.

## The Complainant Testimony

26. The Complainant took the witness stand and stated that she had worked for the Employer since she was 16 years old. That she and the Employer had an off and on relationship. He knew that both her brother and mother had mental health conditions and would often mention it.

27. She indicated that in recent months she felt as if she was not wanted. The Employer would often make remarks about her having a mental health issue or being summoned to the office for things that did not make sense. She was tired of being accused of things she did not do or could not be proven. She believed she was being punished for a situation that occurred two weeks prior.

28. That morning she thought she had lost her keys and had been emotional. However having found them her mood changed, she was happy and started singing loudly and did not believe her behaviour was abnormal.

29. The Complainant advised that after the early morning "rush" things slowed down greatly and on this occasion she went outside to check the traffic flow. The Employer approached her and she was told that someone had complained about her being rude. She was told to go home.

30. She indicated that when the police officer suggested she leave she did but with the understanding that she would return to work the next morning.

31. The Complainant stated that she had worked from 7am to 11am that day. Later that day a termination letter was sent to her phone.

32. She advised that a progressive disciplinary process was not followed. It was not in her interest to be rude and she did not believe that she had been.

33. The Complainant advised that no severance pay was given when terminated from the previous company.

34. During cross examination the exchange between the parties got a little hostile and the Chairman stopped the exchange and summarized for the Employer.

## Issue of the continued operation

35. The Chairman then asked both parties to make comment on whether the employment of the Complainant was considered continuous with her employment of the former company.

36. Counsel for the Complainant stated that his client believed that the employment was continuous as some of the Partners for the new company were the same as those for the former company.

37. The Employer responded that the former company had been a limited company and when dissolved it had no assets. Further, it had three partners at the time of closure with a debt of $68,000. He was trying to show good faith and convinced the creditors that the new company would try to eliminate some or all of the debt owing by the former company.

## Deliberations

38. The Tribunal having heard the representations from both parties determined that it had three issues to consider. These based on relevant laws and court precedents were:

a) Was the Complainant guilty of serious misconduct?

b) If so, was the Employer justified in summarily severing the employment relations?

c) Should it be determined that the Complainant was unfairly dismissed was the relationship of employment to be from the date of employment with the new company Ltd or was the employment continuous and her years of engagement with the former company to be considered?

39. The Tribunal took into account the ruling by Kawaley CJ in the case of Matthews v Bank of Bermuda Ltd. In that matter the Learned Justice determined that the Tribunal must consider and make findings on the objective reasonableness of the decision by applying section 25 and 24(3) of the Employment Act 2000.

40. The Employment Act 2000 section 25 states: An employer is entitled to dismiss without notice or payment of any severance allowance an employee who is guilty of serious misconduct—(a) which is directly related to the employment relationship; or (b) which has a detrimental effect on the employer's business, such that it would be unreasonable to expect the employer to continue the employment relationship.

41. Section 24(3) reads: In deciding what is reasonable for the purposes of subsection (1), regard shall be had to—

a) the nature of the conduct in question;

b) the employee's duties;

c) the terms of the contract of employment;

d) any damage caused by the employee's conduct;

e) the employee's length of service and his previous conduct;

f) the employee's circumstances;

g) the penalty imposed by the employer;

h) the procedure followed by the employer; and

i) the practice of the employer in similar situations.

42. The conduct of the Complainant clearly was unprofessional as verified by the two witnesses. They did however agree that they had never experienced the Complainant acting in such a manner before. Even the Employer stated that her behaviour at that time was out of the ordinary.

43. The Employer in his testimony indicated that the behaviour of the Complainant had deteriorated over the recent weeks and that he had intended to give the Complainant a written warning at the conclusion of her shift that day. It is questionable whether a summary dismissal would have occurred had the Employer not have the written warning in hand. Even though under cross examination the Employer stated that the termination was based on the conduct of 25th January 2022.

44. The Employer's conduct for other offences by the Complainant was rather laissez-faire. Both parties agreed that the working relations was very cordial and it appeared to the Tribunal less than professional at times. During his evidence and in his written statement the Employer indicated that the parties had a 15 year working relationship, and that he had never given the Complainant a formal warning even on those occasions that he believed she may have deserved one.

45. When giving consideration to section 24(3)(h) The Tribunal is not persuaded that there was a need to close the business on the day in question especially after the Police arrived and convinced the Complainant to leave. While the conduct of the Complainant was inappropriate, the Tribunal do not believe that it warranted summary dismissal for serious misconduct applying the conditions as stated in section 24(3). But believes that some form of discipline would have been appropriate in the circumstances.

46. Further the Tribunal took note that during the time of the event the Government had put certain procedures in place for workers who had been terminated or laid off due to the pandemic to be compensated. This topic was never raised by either party. It is therefore reasonable to surmise that the employee did receive compensation from the government.

## DECISION

47. Considering the above, the Tribunal then considered how much did the Employee's conduct contribute to her summary dismissal? It is agreed that the conduct of the Complainant was inappropriate.

48. However, Section 40(4) of the Act states:

40(4) A compensation order shall, subject to subsection (5), be of such amount as the Tribunal considers just and equitable in all the circumstances, having regard—

(a) to the loss sustained by the employee in consequence of the dismissal in so far as that loss is attributable to action taken by the employer; and

(b) the extent to which the employee caused or contributed to the dismissal.

(5) The amount of compensation ordered to be paid shall be not less than—

(a) three weeks wages for each completed year of continuous employment, for employees with no more than two complete years of continuous employment;

(b) four weeks wages for each completed year of continuous employment, in other cases, up to a maximum of 26 weeks wages.

49. The Complainant is not seeking reinstatement. The Tribunal in making its determination of a compensation order in accordance with subsection 40(4) took into account the wording of the legislation "be of such amount as the Tribunal considers just and equitable in all circumstances". (Emphasis the Tribunal) This included giving consideration as set out in section 40(4)(b) the extent to which the employee caused or contributed to the dismissal.

50. Having determined that the Employer was not entitled to summarily dismiss for serious misconduct the Complainant, but taking into account the conduct of the Complainant, the Tribunal hereby orders:

(a) the Employer to pay the minimum amount of compensation allowable in the form of three weeks' wages for each completed year of continuous employment as the Complainant had been working there since 23 November 2020.

51. Payment of the compensation is to be made before the 28 February 2023.

Dated this 20th day of January 2023

John Payne - Tribunal Chairman

Jocene Steed - Tribunal Member

Orin Simmons - Tribunal Member