Woods-Forde v Bermuda Hospitals Board
| Jurisdiction | Bermuda |
| Judge | Hellman, J. |
| Judgment Date | 13 November 2013 |
| Court | Supreme Court (Bermuda) |
| Docket Number | 292 of 2011 |
| Date | 13 November 2013 |
Supreme Court
Hellman, J.
292 of 2011
Mr Peter Sanderson, Wakefield Quin, for the plaintiff
Mr Adam Collieson, Appleby (Bermuda) Limited, for the defendant
Employment Law - Termination of employment — Wrongful dismissal — Whether plaintiff's conduct amounts to gross misconduct — Assessment of damages.
This is an action for damages for wrongful dismissal. The plaintiff was summarily dismissed by the defendant. The defendant claims that the plaintiff was dismissed for gross misconduct because she lied to managers conducting an investigation into a complaint against her by a co-worker. The plaintiff admits that she lied but denies that this amounted to gross misconduct. She further submits that the defendant failed to comply with the disciplinary procedure in her contract of employment as it did not give her the opportunity to explain her lies before dismissing her. The defendant admits that it did not give her this opportunity but submits that it had no contractual obligation to do so.
The plaintiff worked at the King Edward VII Memorial Hospital (“the Hospital”) full time as a clerk/receptionist in the Diagnostic Imaging Department (“the Department”) and part time as a switchboard operator/front desk receptionist.
The plaintiff's dismissal followed a complaint made against her by a co-worker, Hadas Wolffe, who worked as a scheduler in the Department, but on a different floor to the plaintiff.
The complaint was set out in a letter to the defendant dated 24th March 2011. Ms Wolffe verified the details when she gave evidence. It was as follows. She had a son named Hazai. At the date of the complaint he was 6 years old. Every day after school, with the permission of Ms Wolffe's manager, he used to go to the Hospital and wait there until his mother had finished her shift.
On 23rd March 2011 Ms Wolffe finished her shift and went to look for her son. He wasn't where he was supposed to be. Worried, Ms Wolffe called Hazai's school. The receptionist told her that Hazai was no longer at school but with a woman called Ms Forde who helped him with his homework. Ms Forde had called the school about a “situation” involving Hazai and asked to speak to the head of the after school care programme, Ms Liverpool. Ms Wolffe was worried and confused as she didn't know anyone by that name.
Ms Wolffe called Ms Liverpool, who told her that Ms Forde's name was Geneanne and that she worked with Ms Wolffe. Ms Liverpool said that Geneanne just wanted to know if she, i.e. Ms Liverpool, knew about Hazai's “situation” at school. Ms Wolffe realised that Geneanne was the plaintiff. Armed with this information she was able to locate Hazai, who was sitting watching TV in the area where the plaintiff worked.
The next morning, Ms Wolffe was informed — it is not clear by whom — that the plaintiff had been questioning Hazai about the incident at school and asking him if certain teachers still worked there.
Ms Wolffe was angry and upset. She complained orally to Orea Butterfield, who managed the Department. Ms Butterfield asked her to put her complaint in writing, which she did that day.
Ms Wolffe stated in the complaint:
“I am a single mother and it is hard for me already having to deal with my son's situations at school. I do not appreciate someone that has nothing to [do with] me or my child to be meddling in my personal business.”
She was also upset because Hazai had been waiting in a patient area, where he was not supposed to be. This could have got her into trouble with her supervisor. It was clear from her oral evidence that she is still angry about the incident.
Shortly thereafter, Ms Butterfield left on vacation. In her absence, Earlington Raynor, who was the plaintiff's immediate supervisor but subordinate to Ms Butterfield, had conduct of the investigation. He met the plaintiff on 30th or 31st March 2011, when he read out the complaint and asked for her written response by 10 am the next day. However he refused to provide her with a copy of the complaint.
The plaintiff provided a written response, which she signed, dated 31st March 2011. She stated that on the day in question she had seen the child running around in an unruly way during work hours in the Department. She also stated:
“I did not call the school, nor did I assist the child with his homework. There is no truth in these allegations.”
On 8th April 2011 a meeting took place between the plaintiff and 3 members of management: Ms Butterfield; Mr Raynor; and Marcia Pringle, who worked in the Hospital's Human Resources Department (“the 3 managers”). The meeting was cut short when the plaintiff, as was her contractual right, stated that she wished to be represented.
By cover of a letter from her attorneys, also dated 8th April 2011, the plaintiff submitted an amended copy of her written response. The covering letter explained:
“At that time, our client's eyes were dilated awaiting medical treatment and she was unable to see properly. Accordingly, she asked another individual to type out a response on her behalf, as well as doing one herself. Unfortunately, the response which was given to Mr Raynor was not the one she had prepared and signed, a copy of which is attached hereto.”
The amended response was also signed by the plaintiff and dated 31st March 2011. Significantly, it omitted the sentence: “I did not call the school, nor did I assist the child with his homework”.
The complaint took longer to resolve than it would have done otherwise because of the plaintiff's ill health, which led to frequent absences from work. The defendant was concerned that she was trying to delay the disciplinary proceedings. The plaintiff denied this and the defendant accepted that all her absences were supported by medical certificates. The plaintiff explained that in early April 2011 she was diagnosed with an eye condition which required urgent surgery to her left eye, and that the surgery led to serious complications. I accept her evidence on this point.
On 2nd May 2011 the plaintiff returned to work after one such absence. Ms Butterfield gave evidence that she met the plaintiff to remind her that she needed representation. She states that during the meeting the plaintiff admitted that she called Hazai's school. I accept her evidence on this point.
On 2nd June 2011 Mr Raynor suspended the plaintiff with pay. He stated in evidence that this was so she wouldn't have “an excuse” for failing to secure representation.
A disciplinary meeting was finally held on 13th June 2011. The 3 managers were present, and the plaintiff was represented by counsel. The plaintiff was supplied with a copy of the written complaint. She maintained in evidence that it was a more detailed document than the one read out to her previously. I accept the evidence of Ms Wolffe and Mr Raynor that it was not.
The plaintiff was asked if she called the school and who she spoke to. After consulting her attorney she said that she had no recollection. She was then confronted with her alleged admission to Ms Butterfield, but said that she had no recollection of the meeting.
She was also confronted with telephone records showing that on 23rd March 2011 at 3.46 pm an outgoing call was made from the Hospital to Hazai's school and that at 4.01 pm and 4.02 pm incoming calls were made to the Hospital from Ms Liverpool's mobile phone.
The plaintiff was asked why there were two different versions of her statement. She said that this was explained in her attorney's letter.
At the end of the meeting, the managers confirmed that the plaintiff would remain suspended with pay until the investigation was completed.
On 30th June 2011 a further meeting took place between the plaintiff and her attorney on the one hand and the managers on the other. Ms Pringle, who led the meeting, told the plaintiff that the defendant had decided to terminate her contract of employment.
The plaintiff was handed a document headed “disciplinary action form” (“the Form”). The Form confirmed that the termination date was that day, 30th June 2011. It contained a list of various types of misconduct to be ticked as applicable, including “Dishonesty/Theft”. However the type of misconduct that was in fact ticked was “Other”. The details of the incident were stated to be: “Serious Misconduct involving Breach of Trust and Confidence. Dishonesty around the case of complaint of calling an employees [sic] child's school”.
It is implicit in the Form and Ms Pringle's witness statement, and explicit in the witness statements of Ms Butterfield and Mr Raynor, that the plaintiff was dismissed for two reasons.
First, on account of the allegations in the complaint, which were impliedly upheld and found to involve breaches of trust and confidence. Ms Pringle said in her witness statement that she found the complaint “particularly concerning” and that the act of calling the school was itself serious enough to be considered serious misconduct.
The second reason was on account of the plaintiff's dishonest conduct in the face of the investigation: she was impliedly found to have lied about both the telephone call and having no recollection of having admitted to Ms Butterfield that she had made the call.
At trial, however, the defendant relied solely on the plaintiff's dishonesty surrounding the investigation, submitting that this was gross misconduct in the sense of a repudiatory breach of contract for which the defendant was entitled to dismiss her without notice.
Thus Ms Pringle stated that phoning the school was not the issue and that throughout the investigation the issue was the act of being dishonest. Later, she said that calling the school was not severe —...
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