The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A FORMER Dolphin Cay marine mammal specialist was wrong for not informing her supervisor that a female guest had breached company policy by touching a dolphin’s genitals seven years ago, the Court of Appeal has ruled.

Appellate President Sir Hartman Longley and fellow Justices Stella Crane-Scott and Roy Jones unanimously agreed Shikera Isaacs-Sawyer’s failure to report the guest’s “inappropriate” actions warranted her termination from the Atlantis resort in 2013.

In doing so, the judges overturned Isaacs-Sawyer’s previous triumph over her former employer before the Industrial Tribunal, which had ruled she was wrongfully terminated and entitled to $28,500 in damages.

The appellate judges found Isaac-Sawyer’s claim that she felt she had a “discretion” on whether or not to report the infraction was a red herring, as it contradicted a company policy she admitted she was bound to uphold.

Conversely, they said her claim was a bid to “escape or immunise herself against criticism” for her actions, and that her not reporting the incident could have “jeopardised” her employer’s licensure and accreditation.

“The duty to report violations was clear,” Sir Hartman said. “It did not provide for the exercise of a discretion.”

According to the facts, Isaacs-Sawyer was employed with Dolphin Cay for almost seven years as a marine mammal specialist.

On April 11, 2013, Isaacs-Sawyer and another Atlantis employee, Mr Armbrister, were to oversee a party of three guests for an interaction with dolphins in a pool.

Pursuant to company policy, Isaacs-Sawyer conducted an orientation with the guests so as to ensure they understood the rules governing what was permissible during the encounter.

The guests were instructed on where they could or could not touch the dolphin; that they could not take a phone or camera into the pool; that no photography was permitted; that pictures would be provided by Atlantis; and that they could not go into the pools if they were drunk or otherwise impaired. If those policies were violated, the person overseeing the encounter was under a duty to have the guest removed from the pool and report the incident to a supervisor.

During the subsequent encounter, which was partially memorialised on still photographs taken by Atlantis employee Tamika Petit-Holme, one of the guests, Zoey, had a camera in the pool and took a photograph as her flash went off. Isaacs-Sawyer said she removed Zoey from the pool when she tried to take the photographs but she later returned. Also, it was clear from the official photographs that Zoey inappropriately touched the dolphin’s genitalia.

Isaacs-Sawyer said she felt she had a discretion whether to report the incident, and she chose not to. Ultimately, she felt Zoey’s behaviour did not amount to mistreatment or abuse of the dolphin, nor was it serious, hence why she did not remove her from the pool or report the incident.

According to the ruling, Isaacs-Sawyer also employed that reasoning when the guest tried to take the photo with her phone.

However, Isaacs-Sawyer admitted the requirement to report the incident was mandatory and her failure to do so could lead to termination. She also admitted to having knowledge of the Marine Mammal Protection Act (MMPA) that clearly prohibited certain interactions with dolphins and sea lions. She further admitted that Zoey’s hand may have touched the dolphin’s nether regions; but said it could have happened by chance due to the close contact between the animals and the guests.

Mrs Petit-Holme, whose official photos of the incident were used in evidence, was the one who actually reported the incident because one of the guests had shoved her. At the time, Mrs Petit-Holme thought the guest was drunk. She said she saw Zoey touch the dolphin’s genitals and also saw the flash go off, but did not see Zoey actually take the picture.

Nonetheless, Isaacs-Sawyer was found to have violated the company policy by failing to report Zoey’s conduct to her supervisor. The policy she violated provided that “if at any time a member of the team witnesses (first hand or otherwise) improper conduct or a failure to comply with company and department policies, they must notify their supervisor immediately.”

Meanwhile, the MMPA stipulates that “participants should not touch the eye, blow hole or genital regions of a dolphin or sea lion” and that a person should not be permitted in the programme “if a person is under the influence of drugs or alcohol or otherwise similarly impaired.”

Isaacs-Sawyer was consequently suspended for her misconduct and thereafter summarily dismissed. Prior to her dismissal, she was given an opportunity to plead her case before human resources personnel. However, she unsuccessfully requested a review board hearing where three of her peers or persons on her level could speak on her behalf.

She subsequently took the matter up before the Industrial Tribunal, whose vice-president ruled that her former employer did not conduct a reasonable investigation by not affording her the review she requested. As a result, the Industrial Tribunal found that Isaacs-Sawyer was wrongfully terminated and due to received $28,500 in damages.

However, the appellate judges said the Industrial Tribunal’s ruling begged the question: “What is a reasonable investigation and was the holding of a review board essential to a reasonable investigation?”

Sir Hartman said the answer to that question lies within the employer’s ability to ascertain the true facts upon which it can make an “informed decision to ground or support an honest belief on reasonable grounds that the employee committed the act of misconduct.” That, he said, would “normally involve where it is considered necessary an account of the incident from as many eye witnesses or persons in the know as possible yet at the same time giving the employee an opportunity to be heard and respond to the gathered information and complaint.”

In the present case, Sir Hartman noted that no one who “could be expected to cooperate with an investigation and give reasonable information” about the event was left out of the investigation, save for Mr Armbrister, who he said was “probably under the threat of disciplinary proceedings and may not have been of much assistance or a willing witness” in any event.

Thus, Sir Hartman said the critical witnesses were Mrs Petit-Holme and Isaacs-Sawyer. Sir Hartman said Mrs Petit-Holme’s “graphic photos” told a “tale of inappropriate behaviour” by Zoey in violation of the company’s policies. However, he said Mrs Petit-Holmes’ photographic evidence and her oral testimony was not seriously countered by Isaacs-Sawyer, whose evidence he said seemed “littered with contradictions” but confirmed Zoey’s inappropriate actions.

However, Sir Hartman said Isaacs-Sawyer still tried to “escape or immunise herself against criticism that her handling was in violation of the reporting policy and behavioural policy of interaction by claiming a discretion which does not appear in her contract of employment when weighed against the clear directives.”

“The need for reporting is obvious,” Sir Hartman said. “The employer must know whether it needs to revise or reform its policies to ensure proper handling of the animals. The statute spelt out what was against the law of the land. It was not simply a question of policy. Potential violation of the law is involved. These directives, especially for reporting, are essential to keeping the company complicit with local and international standards and not to jeopardise or risk losing its licence or accreditation over inappropriate behaviour—thus the requirement—mandatory duty on the part of the employee to make reports of such behaviours and not try to minimise the effect by claiming a discretion which she did not have.”

And concerning the Industrial Tribunal’s ruling, Sir Hartman said it has to be set aside “on the basis it is erroneous as a matter of law.” He said had it considered the “true principle”, it would have concluded that notwithstanding Atlantis’ failure to grant a review board, the investigation that was conducted “was in all the circumstances reasonable and provided a reasonable basis for the belief formed by the employer that the respondent had committed the misconduct in question.”