Elphina Abraham v Sunny Caribbee Herbal and Spice Company Ltd

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 29 April 2010
• Docket Number: Claim No. BVIHCV2007/0122
• Court: High Court (British Virgin Islands)
• Date: 29 April 2010

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. BVIHCV2007/0122

BETWEEN

Elphina Abraham

Claimants

and

Sunny Caribbee Herbal and Spice Company Limited

Defendant

Appearances:

Ms. Cheryl Rosan and Mr. Michael Maduro of C.E. Dawson & Co. for the Claimant

Mr. John E. Carrington of W McTodman & Co. for the Defendant

The following cases were referred to in the judgment.

1. Henry v Mount Gay Distilleries Limited (Barbados) [1999] UKPC 39 (21 July 1999); Privy Council Appeal No. 43 of 1998.

2. Clouston & Co. Limited v. Corry [1906] A.C. 122.

3. Dietmann v London Borough of Brent [1988] I.C.R. 801.

4. Wilson v Racher (1974) ICR 428.

5. Phillip James v Road Town Wholesale (Trading) Ltd Magisterial Civil Appeal No. 1 of 2004 [unreported]—Written Judgment delivered on 27 June 2005.

6. Pepper v Webb [1969] 2 All E.R. 216.

7. B. Surinder Singh Kanda v The Government of the Federation of Malaya Privy Council Appeal No. 9 of 1961.

CATCHWORDS

Employment Law — wrongful dismissal — summary dismissal — no contract of employment — whether conduct was so grave and weighty to warrant summary dismissal — series of warning letters prior to dismissal letter — were there valid reasons to justify summary dismissal — reasonable opportunity to be heard — measure of damages

HEADNOTE

The Claimant was employed by the Defendant for 23 years. At the date of her dismissal, she had risen to the rank of Factory Supervisor. On 22 November 2006, she was summoned to a meeting to discuss some complaints contained in a warning letter which was given to her in the Managers' office. As the Managers proceeded to discuss the contents in the letter, she became upset and began shouting. The Managers tried to calm her down. Thereafter, she refused to participate in the meeting informing them that she had preferred to peruse the warning letter at her own convenience. She was summarily dismissed. The following day, she was given a dismissal letter to that effect.

The Claimant sues the Defendant for damages for wrongful dismissal alleging that she was dismissed without just cause or excuse as no valid reason was given for her dismissal. She also alleged that she was not given a reasonable opportunity to be heard and as such, was denied a right to natural justice. The Defendant asserts that the Claimant's behaviour was such that it amounted to misconduct in relation to her employment, so serious that no employer could reasonably be expected to take any course of action other than termination of the employment.

HELD:

[1] An employer has a common law right to dismiss his employee summarily on the grounds of the employee's serious misconduct, disobedience to lawful orders and negligence.

[2] The question whether misconduct is such to justify summary dismissal is a question of fact and degree: see Henry v Mount Gay Distillerie Limited (Barbados) [1999] UKPC 39. It is a matter for decision by the trial judge and not by the appellate courts: Clouston & Co. Limited v Corry [1906] A.C. 122.

[3] The Claimant's conduct was “insulting” and “insubordinate” to such a degree that it was incompatible with the continuance of the relationship of employer and employee. This gross form of insubordination amounted to misconduct in relation to the Claimant's employment that no reasonable employer could be expected to tolerate or respond otherwise than by dismissal. The circumstances justified dismissal without advance notice.

[4] There were valid reasons for the Claimant's dismissal and the summary dismissal was justified in the circumstances.

[5] The Claimant was given a reasonable opportunity to be heard. Instead of making use of that opportunity, she began shouting and was defiant to the Managers. She cannot now say that there was a breach of natural justice.

[6] Summary dismissal is dismissal without giving the employee such notice, or wages in place of notice, as the contract requires. Thus, the issue of damages does not arise for consideration as the Defendant was justified in summarily dismissing the Claimant.

Introduction

HARIPRASHAD-CHARLES J

1 Ms. Elphina Abraham was employed by Sunny Caribbee Herbal [sic] and Spice Company Ltd (‘Sunny Caribbee’)1 for 23 years. Over the years and more specifically since the year 2000, she had received several warning letters concerning her behaviour. On 22 November 2006, management summoned Ms. Abraham to a meeting to discuss some complaints contained in a warning letter which was given to her in the Managers' office. As the General Manager, Mr. Gregory Gunter and the Assistant General Manager, Mr. Dame Peters (collectively ‘the Managers’) proceeded to discuss the contents in the letter, Ms. Abraham became upset and started speaking loudly. Then, she began shouting at the Managers who tried to calm her down. Thereafter, she refused to participate in the meeting informing them that she had preferred to peruse the letter at her own convenience. She was summarily dismissed. The following day, she was given a dismissal letter.

2 Ms. Abraham now contends that her dismissal was wrongful and sues for damages. Sunny Caribbee says that Ms. Abraham's behaviour was such that it amounted to misconduct in relation to her employment, so serious that Sunny Caribbee could not reasonably be expected to take any course of action other than termination of the employment.

The facts

3 The facts are largely undisputed except as it relates to what took place at the meeting on 22 November 2006. Ms. Abraham says one thing. Mr. Peters says another. However, on a balance of probabilities, I prefer the evidence of Mr. Peters (although he appeared uneasy at times) to that of Ms. Abraham. In my opinion, Ms. Abraham was not candid and as such, I could not believe her. She even contradicted some of her own evidence as contained in her witness statement.

4 The facts as I found them are as follows: Ms. Abraham was an employee of Sunny Caribbee and, in fact, was the first employee to work there. At the time of her dismissal,

she had worked with Sunny Caribbee for over 23 years, since 15 November 1983. She had worked her way up to the rank of a Factory Supervisor. Her duties included making the lunch rosters, ensuring that the workers concluded the work set by the Managers and packaging teas and spices into containers.

5 On 22 November 2006, Sunny Caribbee, through its Managers prepared a written warning letter2 for Ms. Abraham. Later that day, at about 4.50 p.m., the Managers summoned her to a meeting. When Ms. Abraham arrived, she was handed the warning letter which contained a number of complaints against her. The Managers invited her to discuss the complaints. This was the purpose of the meeting.

6 Mr. Peters then informed Ms. Abraham that for some time they had wanted to meet with her concerning previous complaints made against her by other employees. It is undisputed that Ms. Abraham had previously received other warning letters from Sunny Caribbee including the following:

• • 26 October 2000—from Mr. Gunter to Ms Abraham, concerning her defiant and uncooperative attitude to her fellow managers and company owners.

• • 29 November 2000—from Mr. Gunter to Ms. Abraham concerning her unprofessional behavior, apparently arising out of an incident where she attacked the personal integrity of a fellow employee.

• • 7 December 2000—third warning letter from Mr. Gunter to Ms Abraham concerning her unacceptable behavior and attitude where he stated‘You are not performing in a cooperative manner and continue to insubordinate mine and other people's actions and decisions’.

• • 8 April 2004—from Mr. Gunter to Ms. Abraham, concerning her refusal to wear the company uniform.

7 Mr. Peters then proceeded to inform Ms. Abraham of the company's dissatisfaction with her handling of her duties and her disrespect for management and co-workers. The reasons contained in the warning letter are as follows:

• •‘Disregard for Management's Authority;

• • Lack of respect for the Company Owner and company policies;

• • Refusal of particular supervisory duties;

• • Verbal abuse and alienation of employees;

• • Inefficient use of company time;

• • Lack of cooperation in furthering company policies;

• • Lack of cooperation in promoting the company

We also note your refusal to participate and support company functions and initiatives, for example, the Employee of the Quarter Program’.

8 Ms. Abraham expressed shock at the accusations. She opened the warning letter and Mr. Peters proceeded to discuss the contents with her. Upon doing so, Ms. Abraham inquired about details of the complaints and the name of the employees who made the reports of complaints. These questions were not answered. She became angry, stood up and began to speak loudly to Mr. Peters. Thereafter, he began shouting at him. Without completing the discussion of the contents in the warning letter, Ms. Abraham informed the Managers that she was not prepared to deal with the complaints that afternoon but will prefer to take the warning letter away in order to peruse it at her own convenience. After that, she would request another meeting to discuss it.

9 The Managers outright disagreed and tried to convince her to stay in the meeting. In fact, Mr. Peters informed Ms. Abraham that if she did not stay to discuss and resolve the issues, that Sunny Caribbee could not continue with her employment. They tried to convince her to sit down but Ms. Abraham was adamant. At that stage, Mr. Peters asked her to turn over her keys. He informed her that in light of her behaviour, her employment with Sunny Caribbee is terminated. With her hands and eyes lifted to heaven, Ms. Abraham said ‘Halleluiah, thank you Jesus’ and then left.

10 The next day, Ms. Abraham was given a letter, signed by Mr. Peters (carbon copied to the Labour Department) informing her that her employment with Sunny Caribbee is...