Matthews v Bank of Bermuda Ltd

• Jurisdiction: Bermuda
• Judgment Date: 20 August 2010
• Date: 20 August 2010
• Docket Number: Civil Jurisdiction 2010 No. 46
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 46

BETWEEN:

DANIEL DAVID MATTHEWS

Appellant

v

BANK OF BERMUDA LTD

Respondent

Mr R Horseman for the Appellant

Ms F Rana-Fahy for the Respondent

The following cases were referred to in the judgment:

British Telecommunications plc v SheridanUNK [1990] IRLR 27

Universal Caribbean Establishment v Harrison (Antigua Suit No. 21 of 1993)

Dundee Leeds Management Services v AggarwalBDLR [2007] Bda LR 47

Elphina Abraham v Sunny Caribbee Herbal and Spice Co Ltd (Eastern Caribbean Supreme Court - BVI High Court dated 29 April 2010)

Chief Constable of Thames Valley Police v KellawayUNK [2006] IRLR 170

Abstract:

Appeal against decision of employment tribunal - Termination of employment - Misconduct - Summary dismissal - Unfair dismissal

JUDGMENT of KAWALEY, J

Introductory

1. By Notice of Originating Motion dated Feb 12, 2010, the Appellant appeals against a decision against the Employment Tribunal dated January 26, 2010. The decision complained of is "the decision that the Respondent was justified in terminating the Appellant's employment under Section 25 (a) (b) of The Employment Act 2000". It is believed that this is the first or one of the first appeals under The Employment Act 2000.

2. The Appellant's Notice of Originating Motion sets out the following Grounds of Appeal;

"2(i) The Appellant was originally terminated by the Respondent for serious misconduct under Section 25(a) of the Employment Act by letter of termination. There was no evidence presented such that the Tribunal could find that there was such conduct and therefore the tribunal erred in law in reaching such a decision.

2(ii) The Tribunal erred in finding that the Respondent's alleged misconduct had a detrimental effect on the Respondent's business there being no evidence upon which to make such a finding;

2(iii) The Tribunal erred in law by failing to advise the Appellant who was unrepresented and acting in person that he could summons witnesses to attend. The Appellant had requested that witnesses from the Respondent attend but they declined to do so. The Appellant was therefore denied the opportunity to properly put his case to the Tribunal;

2(iv) The decision was so unreasonable that no reasonable tribunal could have made it considering the evidence;

2(v) The Tribunal failed to give proper reasons or any sufficient reasons for the decision;"

3. The Employment's Tribunal was comprised as follows: Kenneth Richardson (Chairman); Gary Phillips and Edwin Wilson. The Chairman prepared typed notes of the hearing which constituted the Appeal's record in this matter. The record reveals

that the Chairman advised the parties at the commencement of the January 19, 2010 hearing, that all decisions of the Tribunal were final and could only be appealed on a point of law.

4. The record also reveals that the Chairman invited the parties to make one last effort to reach a settlement before the proceedings began. The parties were asked if the intended to bring witnesses and the Bank indicated they would call one witness. The Appellant indicated that he'd asked several persons at the Bank to appear as witnesses on his behalf but they had declined. The parties were also advised that the burden of proof was on the employer to demonstrate that the termination of the Appellant's employment was justified; accordingly the Bank presented its case first.

5. The main broad issue which arose on the hearing of the appeal was whether or not the Tribunal's decision was essentially lawful based on its assessment of the facts or whether the decision could be fairly said to be wrong in law. Ms. Rana-Fahy urged the Court to be both mindful of the dominant philosophy of The Employment Act in vesting all factual matters in the discretion of the Tribunal and also emphasised the need for this Court to give guidance for future cases.

The Hearing

6. The Bank's case was that the Appellant failed to perform in the delivery of its Premier Banking Service in a satisfactory manner. This service was launched in 2007 as a high end banking service for customers with a portfolio in access of $250,000.00.

7. According to the Bank's witness, Mr. Fletcher, the mass affluent market, which the Appellant was trained and accredited as a trainer to service, was a critical service for the Bank. The nature of the service required responses to customers request to be delivered in an outstanding manner.

8. To monitor quality control, the Bank developed a mystery shopper program which all employees were aware. A mystery shopper would enter the bank whose staff would assume that he or she was a genuine customer, and prepare report on the quality of service delivered. On February 13, 2008, the Appellant was on duty and failed to meet the mystery shopper who attended the Bank despite being invited to do so by the receptionist. This incident was included in an internal report of March 11, 2008 for which the Bank received a very low grade, ranking it close to the bottom across a group of which it had previously been near the top.

9. The Appellant's defence went as follows. At the time of the mystery shopper incident in question, Mr. Fletcher had been allowed to go out looking for accommodation for his family. As a result, he was the only person on duty at the time in question and had other time sensitive issues to deal with. He also complained that the Bank ought to have ensured that a more experienced receptionist was on duty. Had that been the case, he could have completed his critical assignment than serviced the client. He also suggested that all other relationship managers should not have been allowed to be off at the same time.

10. In closing submissions, Mr. Martin Law of the Bermuda Employer's Council for the Bank submitted that the complete failure to service the mystery shopper on February 13 (for which the Appellant was directly responsible) put the entire Premier Banking Service offered by the Bank in Bermuda at risk. Because of this the Appellant's services were terminated on March 17, 2008 on the grounds that his continued employment was no longer possible.

11. In the Appellant's closing submissions, he began by setting the background to his occupation of the post in question. He claimed that the Bank's witness, Mr. Fletcher had been appointed instead of him to a Senior Manager (Wealth Management) for which he was qualified. When he sought to challenge why the spouse of the Bank's senior Legal Counsel was preferred to him, he was told that if he pursued the matter it would be detrimental to his career. He also noted that a control system had been implemented requiring that no less than two Premier managers should be on station at

any given time. This policy allowed for one manager for operational approvals and another for service issues when they arose.

12. On the day in question, the Applicant was told to miss his lunch hour as two other colleagues would be out. In addition Mr. Fletcher also went out to attend an appointment without informing the Appellant. At 12:45 p.m., certain mutual fund trades required approvals on an emergency basis. The Appellant dropped everything he was doing to deal with this matter and successfully obtained an extension to the original deadline. It was during this period of time that the mystery shopper attended his workstation, seeking to speak to a relationship manager about opening an account. The receptionist asked the Appellant if he could deal with the customer and the Appellant instructed the receptionist to invite the customer to either wait for a few minutes or to leave his contact details so that he could be contacted for an appointment. The mystery shopper left the Bank and was discovered not to be a genuine shopper when staff attempted to contact him later.

13. On March 17, 2008 in a meeting in the Human Resources, Mr. Fletcher and the Human Resources Officer handed the Appellant a dismissal letter which he declined to sign. He was then asked to leave the Bank and was escorted to his desk to collect his personal effects. The Appellant told the Tribunal that he felt that Mr. Fletcher, who was a work permit holder, had conspired to remove the Appellant who was a threat to his work permit.

14. According to the appeal record (at page 11) the Tribunal's summary of the submissions and decision was as follows:

"Summary of Submissions

Employer's Position:

The Employer asserted in its submissions that the nature of the Employee's responsibilities were highly specialized, requiring specific handling of clients and prospective clients.

It is the Employer's case that under "normal" circumstances this termination might appear harsh, but that the employee's failure to adhere to the well-established, and significantly important protocols, necessitated his dismissal as such had a detrimental effect on the employer's business.

Employee's Position:

The Employee sought to demonstrate that the Employee wilfully ignored any form of due process in terminating his employ.

Determination and Order

The Tribunal heard and considered witness testimony as well as both written and oral submissions from the parties.

The Tribunal has determined that given the distinctive nature of the specialized service the employer was justified in terminating the Employee under Section 25(a) and (b) of the Employment Act, 2000. No further compensation is awarded."

Statutory framework

15. The present appeal against a decision of the Employment Tribunal is made under section 42 of the Employment Act 2000, which provides as follows:

"Appeals

(1) A party aggrieved by a determination or order of the Tribunal may appeal to the Supreme Court on a point of law.

(2) An appeal under subsection (1) shall be lodged in the Registry within twenty-one days after receipt of notification of the determination or order, or such longer period as the Supreme Court may allow.

(3) On any such appeal, the Supreme Court may make such...