The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A landscaping company was ordered on Friday to fully compensate one of its employees for all of the days it suspended her without pay earlier this month, which were actually days she had to report for jury duty.

Justice Gregory Hilton ordered Creative Designs by Munroe’s Landscaping and Xerascaping Company to reimburse Wendalyn Davis after docking her pay for days she was summoned to serve as a juror in a recent criminal trial.

Munroe’s Landscaping also risked being fined for effectively suspending Ms Davis indefinitely for not showing up to work on another subsequent day when she was summoned to appear in court for jury selection.

However, though noting that suspending Ms Davis “until further notice” in that instance was “tantamount to a dismissal”, as well as “incorrect and wrong”, Justice Hilton “cautioned” the company on the issue, and ordered that she be re-engaged.

Failure to comply with the order would result in the company being found to be in contempt, Justice Hilton said.

Justice Hilton’s orders came after Crown attorney Joel Seymour, who prosecuted the trial in which Ms Davis sat as a juror, called on the judge to order Munroe’s Landscaping to compensate Ms Davis for the “pain and suffering” she might have suffered as a result of being suspended for merely performing her “civic duty in this society.”

According to Mr Seymour, Ms Davis was summoned to serve as a member of the jury pool for the period July 1 to August 31.

On July 8, the trial of the Crown vs Ashley McKenzie, which he prosecuted, opened before Justice Hilton. The very next day, on July 9th, Mr Seymour said Munroe’s Landscaping issued Ms Davis with a formal notice of job abandonment.

According to Justice Hilton, the letter, which was actually a pink slip, bore the caption: “Job abandonment/unauthorized absenteeism”.

The particulars of the letter read: “These actions are against company policy. You did not show up for work on your designated days and times. As a result of this management has decided to give you the rest of the week off without pay and you are to return on the 13th of July, 2019. If such actions persist this could lead to your dismissal without pay”.

Two days later, on July 11, and the day the trial ended, the Supreme Court’s bailiff’s office sent a letter to Munroe’s Landscaping to inform them that Ms Davis was a member of a jury pool and had since been selected as a juror in Ashley McKenzie’s trial.

Also on that day, a letter was sent from the Office of the Supreme Court’s Registrar confirming that Ms Davis was selected as a juror and is in the jury pool. That letter also indicated the dates on which Ms Davis was required to appear for jury service: June 20th for orientation; July 1st; and July 8, 9 and 11. It was also indicated in that letter that she was scheduled to return on July 22.

Also sent to Munroe’s Landscaping on that date was information pertaining to the obligations of both an employee and his/her employer under the Juries Act. Also attached to that letter were the relevant sections of the Juries Act.

According to Mr Seymour, the jury selection record and daily jury attendance confirmed that Ms Davis was present at court at all times during the commencement of trial and at any adjourned date given in the matter.

Fast-forward to July 22, however, Ms Davis was indefinitely suspended from Munroe’s Landscaping for another unauthorized absence. In another pink slip, signed and dated July 22, management said: “These actions are against company policy. You did not show up to work on your designated day and time. As a result of this management has decided to suspend (you) from your duties effective 22nd July, 2019 until further notice. Again if such actions persist this could lead to your dismissal.”

As a result of the aforementioned, Ms Davis lodged a complaint to the court and the Registrar. Justice Hilton consequently subpoenaed Stephen Munroe, the company’s owner and founder, as well as its manager, Katherine Saunders.

When the proceedings commenced on Friday, Mr Munroe indicated that he was shocked that he was made to attend, because while he is the owner and founder, he has effectively “retired” from the day-to-day running of the company. And for that reason, he said he did not authorize and/or endorse the letters issued to Ms Davis, adding that he only found out about the matter at the tail end.

He consequently deferred to his wife, Nadine Munroe, who is the company’s CEO.

Mrs Munroe, in turn, asserted that Ms Davis had given the court the wrong information. She said that Ms Davis neglected to tell Justice Hilton that the company’s work shift starts at 7am. Jury duty, as she was told, commenced at 10am. Thus, Mrs Munroe said Ms Davis’ instructions were to report to work for 7am, then head to jury duty. However, she said, Ms Davis unilaterally decided “to do what she wants to do” and did not show up for work, neither before her civic duty nor afterwards.

In response, however, Justice Hilton noted that Mrs Munroe had misapprehended the law as outlined in the Juries Act.

Mrs Saunders, meanwhile, accused Ms Davis of being difficult and refusing to provide the company with the information pertaining to her jury duty. Additionally, Mrs Saunders claimed Ms Davis would tell her that she would not be coming to work on a day she was on jury duty. And not only did Ms Davis not return to work, Mrs Saunders claimed, but she did not provide Munroe’s Landscaping with any information pertaining to her jury duty. Mrs Saunders said she had to get that information from a representative from the bailiff’s office “after the fact”.

Conversely, Mrs Saunders said she repeatedly tried to explain to Ms Davis that performing one’s civic duty does not automatically translate to a day off; once one’s civic duty is at an end that individual should report to work if time allows.

Justice Hilton agreed with those sentiments, indicating that in the event one’s civic duty comes to an end on any given day, for example, if a matter is adjourned, they can and/or are liable to report back to work.

Notwithstanding those issues, Mrs Saunders said the July 9 pink slip was actually because she did not report to work on the Saturday prior. According to Mrs Saunders, at the time, Ms Davis had claimed she was sick, but did not bring in a doctor’s note.

Concerning the July 22 pink slip, Mrs Saunders explained that on that Monday, Ms Davis sent her an email essentially dictating to Munroe’s Landscaping what she planned to do in light of the fact she had to appear in court as a member of the jury pool. Mrs Saunders said Ms Davis told her that she would not go into work that day, but instead go in the following day and use July 22 as her day off.

Mrs Saunders said she tried to explain to Ms Davis that after her civic duty is completed, and if time allowed it, she ought to report to work. However, Mrs Saunders said Ms Davis’ words to her were “as a manager you have no understanding”.

Ultimately, Mrs Saunders said Munroe’s Landscaping was placed in a precarious position because the information pertaining to Ms Davis’ jury duty and her and the company’s obligations pursuant to the Juries Act were not provided to the in a timely manner, but after the fact.

However, Justice Hilton said whether or not the company knew the law or were advised of same, the law “is still the law”. To that end, he also stressed that a company “cannot hold an employee to a standard that is contrary to law”.

Justice Hilton said he was satisfied that based on Mrs Munroe’s and Mrs Saunder’s explanations, Munroe’s Landscaping’s breach of the Juries Act was not intentional. However, he said it was a breach nonetheless.

He subsequently ordered that Ms Davis be fully compensated for each day she was suspended from work without pay pursuant to the July 9 pink slip, as well as July 22. He also ordered that her suspension be lifted and she be re-engaged with the company.

To that end, Justice Hilton further ordered that she be compensated for the days she was suspended subsequent to the July 22 pink slip.

Justice Hilton further noted that the tenor of the last line of the particulars of the July 9 letter is “tantamount to a dismissal”, or at the very least, a threat of dismissal, given that “until further notice” suggests an indefinite timeline. Nonetheless, he said, he would not fine the company or its two representatives, but merely cautioned them.