The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A 29-year Atlantis veteran has recovered his termination pay after the Court of Appeal determined he was not guilty of "gross negligence" over the loss of $60,000 in casino chips.

Acting appeal justice Sir Michael Barnett, in a unanimous verdict, ruled that it was impossible for the Industrial Tribunal to have found that the Paradise Island resort "held an honest belief" that Frederick Ferguson, a former director of casino cage operations, had committed such an offence.

Mr Ferguson, who had claimed wrongful dismissal, had been employed with the resort through previous ownerships since July 1980. Promoted to his final post in December 2008, no disciplinary action or complaint had been made against him until June 19, 2009.

Recalling the events of that day, the Court of Appeal recorded: "A cage cashier, for the satellite casino at the Cove advised that he detected a shortage in chips valued at $5,000 each when filling a request from the games tables.

"As a result of that shortage experienced by the cashier a full count of the inventory was conducted at the satellite casinos located at the Cove and Seaglass. The count revealed that the inventory at the Cove was short by $50,000 and at Seaglass by $10,000."

Mr Ferguson's role meant he was ultimately responsible for the gaming chips in the casino cage, overseeing four managers, 20 supervisors and 59 cashiers and clerks. "On June 21, 2009, the appellant [Mr Ferguson] prepared a written report outlining his knowledge of what happened on the 19 June, 2009," the Court of Appeal found.

"Nothing in the record indicates that the appellant was told that he was under investigation or that he was suspected of any culpability in the loss. This perhaps is not surprising as the respondents were still carrying out their own investigation to ascertain what happened and what caused the loss. No doubt, however, he must have appreciated that as the director of casino cage operations his duties as director would have been under scrutiny with respect to the lost chips."

Mr Ferguson then received a notice on August 18, 2009, suspending him for one day because of "gross negligence" stemming from an alleged failure of judgment in following control procedures, which resulted in a $60,000 loss to Atlantis.

Once suspended, he was never asked to explain or challenge the complaint against him and, after receiving a further note of "unsatisfactory performance" the following day, Mr Ferguson was summarily dismissed.

Sir Michael, though, said Atlantis's attached notice did not single out Mr Ferguson, instead referring to the entire casino cage department as "negligent" - and not guilty of "gross negligence".

With the burden of proof on the resort to justify its actions, the Court of Appeal found: "With respect, we do not agree that the Tribunal could have properly held that the evidence disclosed that, after a reasonable investigation, the respondent [Atlantis] held an honest and reasonable belief that the appellant was guilty of gross negligence.

"The evidence does not disclose that any investigation took place during that day he was suspended. He was terminated the following day, and was never given any opportunity to answer any charges that the respondent may have had about his conduct. The fact is the suspension was a facade, and the decision to terminate was made before any suspension took place.

"The decision to terminate was made after the investigation that took place following the incident and before the suspension. In our judgment, where an employer does not comply with its own disciplinary rules as to an investigation into misconduct, that investigation can hardly be regarded as reasonable."

Mr Ferguson was also never given an opportunity to answer the complaint against him, and the court ruled: "In our judgment, in order to be summarily dismissed on the ground of gross negligence the respondent [Atlantis] had to honestly and reasonably believe that the appellant himself was personally grossly negligent in his own conduct.

"It was not sufficient for the respondent to believe that the appellant was collectively 'negligent' with all persons in the casino cage operations, and such collective negligence led to the loss of the chips. The appellant must be personally 'grossly negligent'." Such a finding was never made by Atlantis in its own report.