The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Court of Appeal judge has ruled that John Bull went “beyond the pale” in firing a 14-year veteran store manager for drinking champagne at a promotional event staged by the company.

Sir Michael Barnett found that the Bahamian luxury goods and office supplies retailer acted unreasonably by terminating Helena McCardy, then-manager of its Michael Kors store on Paradise Island, for alleged “misconduct” after she and five other staff consumed some of the drink provided.

The case managed to both unify and split the Court of Appeal. While all three judges unanimously agreed that the Industrial Tribunal verdict in favour of John Bull should be overturned, they reached their conclusions in different ways.

While Sir Michael found that Ms McCardy’s case did not involve “exceptional circumstances that warranted the strong measure of immediate dismissal”, his two fellow appeal judges based their verdict on the Industrial Tribunal’s “total and blatant failure” to treat it as an unfair dismissal claim.

Appeal justices Jon Isaacs and Stella Crane-Scott ruled that Marilyn Meeres, the Industrial Tribunal’s vice-president, had incorrectly dealt with it as a wrongful dismissal matter. They also differed from Sir Michael, who ruled that John Bull ought to pay Ms McCardy a net $22,819 compensation, in finding that the matter ought to be sent back to the Tribunal for a fresh hearing.

Ms McCardy, in her legal pleadings, said news of her termination from “a company I had planned on retiring” with “changed her life” when it was delivered in mid-October 2017 during her five-day suspension from work.

“On September 30, 2017, the store was to host a promotional event at which guests were to be served macaroons and champagne. The event was intended to last from 4pm to 7pm,” the Court of Appeal judgment recorded.

“The staff was encouraged to mix and mingle with the guests, and to take photographs during the function, and they did so. At some point during the function, the appellant [Ms McCardy] retreated to an office area and partook of at least two glasses of the champagne which was intended for the guests. She also allowed members of her staff to consume some of the champagne.”

Ms McCardy was summoned to a meeting with Dorian Roach, her division manager, two weeks later where she was disciplined and suspended for five days without pay for drinking the champagne in her office and allowing staff to do the same. Her termination occurred on the day she was due to return to work, with John Bull offering no severance pay.

The former Michael Kors manager filed a complaint for unfair dismissal with the Labour Board, which was ultimately transferred to the Industrial Tribunal as an unfair dismissal claim. John Bull countered that she had violated company policy by drinking on the job, and claimed it amounted to gross misconduct that warranted immediate dismissal.

Appeal justice Isaacs, writing the majority verdict, noted that the retailer’s employee handbook banned the use and/or possession of alcohol and drugs on company premises and during working hours.

Violations were “cause for immediate disciplinary action up to and including dismissal”, but appeal justice Isaacs also found that John Bull’s disciplinary procedures required that a hearing be conducted where employees had the opportunity to respond to the charges against them. This, though, did not occur in Ms McCardy’s case.

After finding that her complaint ought to be treated as unfair dismissal, as opposed to wrongful dismissal, the Court of Appeal majority verdict said: “It is evident that she is alleging unfairness in the manner that she was treated by the respondent, to wit, that given her otherwise stellar work history of almost 14 years, her actions at the function did not merit the most condign punishment of dismissal.

“Moreover, that by proceeding to what we would in this instance call the ‘nuclear option’ of dismissal, the employer failed not only to follow its own disciplinary procedure but failed also to consider a less severe punishment.”

Rionda Deleveaux-Godet, John Bull’s attorney, admitted to the Court of Appeal that if the retailer had failed to follow its own disciplinary procedures then it would be impossible for the Industrial Tribunal to have concluded that Ms McCardy was not unfairly dismissed.

And appeal justice Isaacs also rejected John Bull’s counterclaim for an increased sum of $7,941 that Ms McCardy allegedly owed in loans and purchases made to her by the retailer during her employment.

Finding that the company was claiming more than it had stated in the former Michael Kors manager’s termination letter, he wrote: “The submission that the real amount was ascertainable only after the financial controller calculated the sums owed lacks credibility. The sums were provided by the financial controller.

“Certain headings were identified, and a final figure as the amount owing was put to the appellant in the letter. It is incumbent on the employer to get it right when terminating the employee, and the consequences of a failure to do so, in the absence of any fault of the employee, must be borne by the employer.”

Sir Michael, in arriving at the same conclusion by a different route, said the key issue was whether Ms McCardy’s summary dismissal after five days without pay was “a reasonable response” to her admitted conduct.

He found that it was not, and ruled that the provision relied on by John Bull to justify her dismissal related to alcohol/drugs brought on to the company’s premises by employees - not alcohol purchased by the retailer for its own promotional event.

While finding that Ms McCardy was wrong to have drunk the champagne, Sir Michael ruled: “Summary dismissal was not, in my judgment, within the bands of reasonable responses in the circumstances of this case involving an employee of 14 years standing.

“The appellant had already been suspended for five days without pay. A punishment she accepted. To then summarily dismiss without any form of notice or payment in lieu of notice was, in my judgment, beyond the pale of a reasonable response.

“It must be borne in mind that although at work, this was a social event. The appellant was expected to entertain the customers. Having a few glasses of the respondent’s champagne without its permission cannot, in my judgment, be so egregious as to cause the respondent to lose trust and confidence in her and exercise its ultimate sanction of summary dismissal after almost 14 years of service.”

Dissenting from the majority’s decision to send the case back to the Industrial Tribunal, Sir Michael said Ms McCardy should have received $27,300 minus the $4,481 she owed to John Bull in loans and accounts receivables. That amounted to a net $22,819.