The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal yesterday upheld an ex-Betty K Agencies employee’s wrongful dismissal claim, expressing surprise that her supervisor was not fired instead for “misplacing a large sum of money”.

But, while upholding Suzanne Fraser’s claim, the appellate court sided with the shipping company on the issue of damages, cutting this from 36 weeks pay to 26 weeks. It also reversed the Supreme Court’s decision to return nine months’ worth of medical premium contributions to her.

Outlining the circumstances leading to Ms Fraser’s dismissal, Appeal court president, Justice Anita Allen, said she had been employed for 12 years as an account assistant until her departure in November 2009.

Earning a salary of $502 per week, Ms Fraser denied that her duties included collecting cash from Betty K’s cashiers if they failed to turn this into her.

This was central to the event that led to her wrongful dismissal. “On Friday, October 28, the respondent [Ms Fraser] left early and had by that time only received monies from one cashier,” Justice Allen wrote.

“On the following Monday, she was asked by her supervisor, Mr Peters, whether she had received monies from both cashiers, whereupon she explained to him that she had left early on the Friday in question and had received cash from only one cashier.

“According to Mr Peters, he remembered one of the cashiers coming into his room with something on the Friday. He further revealed telling her to leave whatever she had in her hand on his chair,” Justice Allen added.

“He denied knowing that it was her till. Apparently, the money was left on the chair over the weekend, per the purported instructions of Mr Peters and, not surprisingly, on the Monday, it was missing. Surprisingly, it was the respondent, not Mr Peters, who was fired.”

Ms Fraser’s termination letter said she was fired for failing to collect all the monies from the cashiers. Betty K said she had breached her employment contract, as she had the obligation to collect the funds from the cashiers if they failed to bring them to her.

“In essence, and there is no denying it in our view, [Betty K] held the respondent responsible for the loss of the money; money which she never had in her possession, but which was, at all material times, in what should have been the safe custody of her supervisor, the chief financial officer,” Justice Allen said.

“Notably, before this incident, there were no complaints about her performance. She was, until that time, a model employee.”

Attempting to overturn the initial Supreme Court verdict, Betty K’s attorneys argued that it had applied “the wrong test” and incorrectly determined Ms Fraser was fired because of the missing money.

Yet the Court of Appeal rejected this, finding that the missing money was “the only reasonable explanation for her termination”.

“In our view, the loss of the money cannot be attributable to any misconduct on the part of the [Ms Fraser],” Justice Allen found.

“Even if we accepted that [she] was terminated for the reason posited by [Betty K], namely that she failed to collect the cash from the second cashier, it is our view that that is not conduct which would justify summary dismissal.”

Justice Allen said Ms Fraser was guilty of none of the offences that would justify summary dismissal under the Employment Act, and upheld the finding she was wrongfully dismissed.

The Court of Appeal, though, reduced her compensation to match the Employment Act’s stipulations, finding that she was owed 26 weeks’ pay - a cut of 10 weeks.

And Ms Fraser’s premium payments to Betty K’s group medical plan were “not a convertible benefit” that she could reclaim. Moreover, she had never asked for this in her pleadings.

Betty K was represented by Ferron Bethell and Adrian Hunt at Harry B Sands & Lobosky, while Ms Fraser was represented by Obie Ferguson.