The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A store manager has lost his $195,000 claim against a luxury goods retailer over the alleged theft of hundreds of thousands of dollars in watches despite being cleared of all criminal charges relating to the affair.

Nicholas Simmons, who managed Little Switzerland’s Breitling Boutique, was found not guilty before the Magistrate’s Court after he was charged with stealing by reason of employment after multiple high-end watches - said to number between 36 and 100, and worth a collective six-figure sum - went missing.

However, Justice Indra Charles, in her March 18, 2022, verdict on Mr Simmons’ subsequent civil claim against his former employer for wrongful/unfair dismissal and breach of contract, found that his termination was lawful because based on the available facts Little Switzerland had an “honest and reasonable belief that [he] was guilty of theft”.

With civil and criminal cases decided upon different standards of proof, Justice Charles ruled that under the Employment Act “a fair and reasonable investigation” into the allegations had been conducted by the luxury goods retailer, whose parent is Johnson Brothers Ltd. In particular, she noted that Mr Simmons had failed to provide a written defence and counter to the claims against him despite being given an opportunity to do so.

The store manager, who earned a $1,875 per week salary after being promoted to his post at Breitling Boutique in 2006, was offered the chance to manage Little Switzerland’s then-new store, Omega Boutique, on October 1, 2014. His assistant manager, Kezia Bethel, was to take over at Breitling.

“Mr Simmons was present at the company store and the Breitling Boutique on November 16, 2014, the day before one of the two yearly inventory audits was held by the company,” Justice Charles wrote. “The inventory audit was held on November 17, 2014. Mr Simmons was not present. On that morning, he flew to another island for vacation which he says was approved by the company.

“The audit revealed missing items from tray 36 of the Breitling Boutique. [A] Mr Howard called Mr Simmons and asked him where he was and where the items in tray 36 were. Mr Simmons told him that the watches were being repaired in Switzerland. There are two section tray transfer documents showing 12 identical electronic transfers to tray 36. One document bears Ms Bethel’s name and employee ID number, and the other document bears that of Mr Simmons.”

Mr Simmons was questioned about the missing watches by Mr Howard and Mike Cooney, Little Switzerland’s vice-president of human resources, upon his return to Nassau on November 22, 2014. “Mr Simmons told them that the watches should be in the tray, which was located in the safe, and that he had completed the turnover process of the store to Ms Bethel,” Justice Charles wrote.

“At the meeting, Mr Howard and Mr Cooney accused Mr Simmons of theft. Mr Howard invited Mr Simmons to submit a written statement representative of his position/defence to the allegations. Mr Simmons was advised that he was suspended until the completion of the investigation.

“By letter dated November 24, 2014, Mr Simmons wrote Mr Howard requesting a written letter confirming his termination. He stated that he would be prepared to provide a written statement only upon the receipt of same. The parties dispute whether Mr Simmons was terminated by letter. Mr Simmons alleged that he never received a termination letter.”

After being found not guilty, and acquitted on the criminal charges, Mr Simmons sought $195,437 in special damages via his civil claim. This was broken down into $37,500 compensation representing one month’s pay in lieu of notice and one month for each year worked; $30,937 for unfair dismissal; $90,000 as compensatory damages under the Employment Act; and $37,000 to cover his legal costs in the criminal matter that arose from Little Switzerland’s theft allegations.

Mr Simmons, during the trial before Justice Charles, said his vacation had been approved and “he had no responsibility with respect to the November 17, 2014, inventory audit” as he was no longer Breitling’s store manager. He added that he gave no written defence because he was awaiting a termination letter.

As for the alleged transfer of the watches to tray 36, Justice Charles recorded: “Mr Simmons stated that it is impossible for two different employees to transfer items from one location to another at the exact same time and date. He said that, at the meeting, he was not given any document to show transfers made or shortages from the audit.

“He maintained that he did not make the electronic transfers, and that his employee ID number appeared there because someone put it there. He further stated that no employee would give out their password. Mr Simmons stated that it would be difficult to explain why it appears that he made the electronic transfers from the section tray transfer document with his name and number.”

However, Tom Ballas, Little Switzerland’s vice-president of operations, asserted that it was against company policy to be absent during an inventory audit. He added that Mr Simmons was still Breitling manager because his transfer had yet to take effect.

“When asked about the inventory audit which led them to believe that Mr Simmons was guilty of theft, Mr Ballas said that, based on communications between Mr Simmons and management along with statements they received, it was clear that the watches went missing under Mr Simmons’ watch,” Justice Charles wrote.

“He said that the company suspended him because they could not get any communication with what was going on. He then said that he believed that his evidence that there were no discrepancies the day before the inventory was wrong.”

Justice Charles, in her verdict, found that Little Switzerland had conducted a “fair and reasonable” investigation into the matter. “Mr Simmons’ insistence on providing a written statement only upon the receipt of a termination letter defeated the purpose of the written statement,” she ruled.

“It was unreasonable, and was effectively a refusal since the purpose of the written statement was to aid the investigation process to help the company to determine whether they believed that he was guilty of theft. Accordingly, the written statement did not have the effect of rebutting the company’s suspicions as it could have if Mr Simmons responded with a reasonable explanation.”

Finding that Mr Simmons’ absence during the audit was not approved, Justice Charles added: “Because of the unreasonableness of Mr Simmons’ absence from the inventory audit, it was reasonable for the company to consider this as pointing toward Mr Simmons’ guilt especially having regard to the fact that Mr Simmons was present in the store the day before the audit and left for another island on the day of the audit.

“There seems to be no reasonable explanation for such a thing. He was the manager.... Jerome Gray and Ms Bethel gave evidence in the criminal matter along with Mr Howard. Mr Gray’s evidence was essentially that Mr Simmons created tray 36 as a repair tray but that it was unnecessary, in his view, because there was already a repair tray. According to Mr Gray, a number of the watches unaccounted for were new watches, which in his experience, were rarely sent for repair.

“Ms Bethel’s evidence was that Mr Simmons always objected to her seeing the contents of tray 36, and she asserted that he had care and control of the merchandise. During the handover of the store, she asked to see the contents of tray 36 when Mr Simmons again objected. She said that she made a complaint about this to Mr Howard.”

Finding that Mr Simmons’ criminal acquittal did not work in his favour, the judge noted that “Ms Bethel’s evidence was that her complaints of Mr Simmons’ suspicious behaviour is what gave rise to the audit”. Justice Charles concluded: “In my considered opinion, Mr Simmons was lawfully summarily dismissed and his dismissal was not unfair.

“The documentary evidence as well as the oral testimony of the witnesses clearly demonstrated that the company had an honest and reasonable belief that Mr Simmons was guilty of theft.”