Richardson v Air Care Ltd

• Jurisdiction: Bermuda
• Judgment Date: 14 January 2015
• Neutral Citation: [2015] SC Bda 5 Civ
• Date: 14 January 2015
• Docket Number: CIVIL JURISDICTION 2014: No 89
• Court: Supreme Court (Bermuda)

[2015] SC (Bda) 5 Civ

In the Supreme Court of Bermuda

CIVIL JURISDICTION 2014: No 89

Between:-

Curtis Peadel Richardson

Plaintiff

and

Air Care Limited

Defendant

The Plaintiff in person

Mr Craig Rothwell, Cox Hallett Wilkinson Limited, for the Defendant

(In Court)

Introduction

1 By a writ of summons dated 6 ^th March 2014 the Plaintiff claims damages against the Defendant for wrongful dismissal and unlawful discrimination contrary to the Human Rights Act 1981 (‘the HRA’). He was dismissed for continued lateness. The Plaintiff contends that his contractual start time was 8.00 am, to which he by and large adhered, whereas the Defendant contends that it was 7.30 am. There is also a dispute about whether, in dismissing the Plaintiff, the Defendant complied with its contractual disciplinary procedure. The HRA complaint concerns allegations that the Plaintiff was fired in order to provide employment for two Canadian expatriate workers.

Background

2 The Defendant was sub-contracted to install the building automation system (‘BAS’) in the new hospital wing at the King Edward VII Memorial Hospital (‘the Hospital’). Installation work began in or around October 2012.

3 The Defendant hired three Bermudians with no previous knowledge or experience in this area to help with the installation. They were to be trained on the job. One of those three was the Plaintiff. He was taken on as a BAS technician.

4 The lead contractors were Black & MacDonald and BCM McAlpine. They had stipulated that the start time for sub-contractors was 7.30 am. I was referred to an email dated 3 ^rd September 2012 from Black & MacDonald reminding their sub-contractors that this was the start time.

5 The Plaintiff was interviewed for the job by his prospective manager, Matt Walker. It is common ground that Mr Walker's management style could fairly be described as robust, but I see this as no cause for criticism. The interview took place on 2 ^nd October 2012. Mr Walker gave evidence that he told the Plaintiff that the hours of work would be 7.30 am to 4.00 pm Monday to Friday. The Plaintiff disputes this.

6 At the conclusion of the interview the Plaintiff was handed a written statement of employment by Kristal Whitehurst, the Defendant's Human Resource Office Supervisor, which he signed, and was given a copy of the booklet ‘ Staff Guidelines and Collective Agreements’ (‘the Guidelines’).

7 A written statement of employment is a document which an employer is required to issue to an employee pursuant to section 6(1) of the Employment Act 2000 (‘the 2000 Act’). This provides that not later than one week after an employee begins employment, the employer shall give to the employee a written statement of employment which shall be signed and dated by the employer and employee. The statement is required by section 6(2) of the 2000 Act to contain various particulars, of which the most pertinent for the purposes of this hearing are: (i) the normal days and hours of employment and (ii) any disciplinary procedures applicable. It may also contain details other than those which it is required to contain relating to the terms and conditions of employment.

8 Thus a written statement of employment is not itself the contract of employment but sets out certain important terms of the employment contract. It is therefore important that the statement is drawn up accurately. As evidence of the terms of the employment contract it is strong but not necessarily conclusive.

9 Section 6(5) of the 2000 Act provides that where the employer and employee agree to change any of the terms of employment the employer shall, as soon as practicable, and no later than one month after the change is agreed, give to the employee an amendment to the statement containing particulars of the change or a revised statement which shall (in either case) be signed and dated by the employer and employee. It is common ground that the Defendant did not give the Plaintiff any such amendment or revised statement.

10 Ms Whitehurst, who prepared the Plaintiff's statement of employment, said in evidence that it was based on a pro forma statement which had been in place for seven years. She added that she would have expected Mr Walker to inform her of any changes to the terms set out in the standard document but that he did not do so.

11 Under the heading ‘Work Hours’, the Plaintiffs statement of employment provided:

Your working hours will be from 8:00 a.m. to 5:00 p.m., Monday through Friday at the offices of Air Care.

12 Under the heading ‘Termination of Employment’, the Plaintiffs statement of employment provided:

a) Termination for Unsatisfactory Performance

Duties not performed in a satisfactory manner may result in disciplinary measures taken, including the following:-

• • A written warning may be given, with instructions as to how to improve performance.

• • If, during the period of six months beginning with the date of the written warning, there continues to be duties that are not being performed in a satisfactory manner, the employee may be terminated without notice or payment of any severance allowance.

b) Termination for Repeated Misconduct

Misconduct that is directly related to the employment relationship may result in disciplinary measures. For instance —

• • A written warning may be given.

• • Furthermore, if during the period of six months beginning with the date of the written warning, there is again misconduct with respect to the employment relationship, the employee may be terminated without notice or payment of any severance allowance.

c) Dismissal

Employment may be terminated in connection with:-

• • Your ability, performance or conduct; or

• • The operational requirements of Air Care Ltd.

One month written notice of termination will be given in these circumstances.

In lieu of providing notice of termination of employment, Air Care Ltd. may pay a sum equal to remuneration and benefits that would have been due up to the expiry of the required notice period.

d) Summary Dismissal for Serious Misconduct

Summary dismissal will occur, without notice or payment of severance allowance, for serious misconduct which:-

• • Is directly related to the employment relationship; or

• • Has a detrimental effect on Air Care's operating effectiveness and efficiency.

13 Those provisions are based respectively upon sections 27, 26, 18 and 25 of the 2000 Act.

14 The Guidelines, under the heading ‘ Disciplinary Procedures’, addressed the procedures which could culminate in dismissal. Although I was referred to the November 2013 edition of the Guidelines, it was common ground that the relevant provisions were the same as in the edition which was in force during the Plaintiffs employment with the Defendant. Those provisions were as follows:

Employees are expected to abide by the procedures, rules and regulations of the Company. Failure to do so could result in disciplinary action being taken. Depending upon the nature of the infraction and after a full investigation of the circumstances, one or more of the following may result:

Stage I — Verbal Warning

This will be given verbally to the individual concerned by his immediate

supervisor to clarify and specify the improvement required.

Stage II 1 ^st Written Warning

The Supervisor/Manager will warn the individual concerned in the presence of his/her representative pointing out the fault of misconduct and indicating that there must be an improvement within a specified time. Failure to make the necessary improvements will result in Stage III. This warning will be confirmed in writing and entered on the employee's personal file for a period of twelve (12) months.

Stage III – 2 ^nd Written Warning

The Supervisor/Manager will warn the individual concerned in the presence of his/her representative. A final written warning stating that failure to make the requirement (sic) improvements within a specified time will lead to disciplinary action being taken.

A copy of this written warning will be entered on the employee's personnel file for a period of 12 months.

Stage IV – Suspension or Dismissal

In the event that the required improvement is not forthcoming the necessary action may be taken. This will be communicated to the individual concerned by the Supervisor/Manager in the presence of his/her representative.

The employee has a right to appeal in writing any dismissal in accordance with the employee grievance procedure within 3 working days. This must be submitted to the Human Resources Department.

15 The disciplinary procedures set out in the Guidelines follow those set out in the Collective Agreement between the Defendant and the Bermuda Industrial Union for the period 2013 – 2015 (‘the Collective Agreement’). The Collective Agreement was dated 10 ^th June 2013. I was not told whether this followed on from an earlier collective agreement. It was in any event in force when the Plaintiff was dismissed. One of the issues in this case is whether the disciplinary procedures in the Guidelines and the Collective Agreement formed part of the Plaintiff's contract of employment.

16 The Plaintiff commenced employment with the Defendant on 4 ^th October 2012. Mr Walker gave evidence, which is disputed by the Plaintiff, that at a safety meeting briefing during that month he made clear to all of the Defendant's employees working on site, which I took to include the Defendant, that the start time was 7.30 am.

17 The Plaintiff completed his three month probationary period without incident. From this I infer that he was aware that he was expected to start work at 7.30 am and that during his probationary period he did so. The Plaintiff, however, contends that insofar as he did start work at 7.30 am it was a voluntary concession to accommodate the Defendant and that, throughout the period of his employment, his contractual start time remained 8.00 am.

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