The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A 32-year Atlantis veteran’s summary dismissal due to a misunderstanding over a drink-related tip was affirmed as “unfair” yesterday by the Court of Appeal, which rejected the mega resort’s challenge to her initial $15,480 damages award.

Sir Michael Barnett, the appeal court president, in a ruling backed by his two fellow judges, found that “no reasonable employer” could conclude that immediate dismissal of Winifred Toote, an employee with 30 years’ standing, was warranted given the circumstances.

Detailing the background to the dispute, the Court of Appeal verdict noted that Ms Toote, who was working as a waitress in Atlantis’ casino bar, was cited for gross misconduct on the morning of May 4, 2019, after a resort guest called Scott Burch alleged that she refused to provide him with a drink.

“Scott Burch stated that Winifred said she works on tips before he received his beverage. Even after the guest asked for the drink, she refused because he did not have any change to tip her. This will not be tolerated,” the Paradise Island resort wrote in its dismissal letter. Mr Burch, though, was never questioned by Atlantis subsidiary, the Island Hotel Company, or asked to respond to Ms Toote’s version of events.

Sir Ian Winder, the chief justice, who gave the original verdict in Ms Toote’s favour, wrote in his judgment: “A guest identified as Scott Burch asked her if the drinks were complimentary. She responded in the affirmative and added that the servers work on tips. Mr Burch ordered a rum and coke. Ms Toote got the drink from the bar and returned to Mr Burch, who was sitting at the slot machines. The drink was on the tray which Ms Toote had in her hand.

“She did not immediately give the drink to Mr Burch. She could have done so. Ms Toote said to Mr Burch: “Sir, your drink is here.” He responded by saying “what is it” and then felt his pocket with his hands for money. Mr Burch said that he did not have any change and Ms Toote responded by saying that she could assist him by getting change from the ‘bill breaker or the cashier’s cage’. At that time Mr Burch became annoyed.

“At about 30 seconds into the exchange between Ms Toote and Mr Burch he began gesticulating with his hands. It would have been difficult at that point, and going forward, to serve the drink without the risk of it being knocked over by the hand movements of Mr Burch. He told Ms Toote to take the drink away “...if I had to beg for a tip’. He went on to say that ‘....he would have given ... [Ms Toote] a tip, but if he had to beg for the drink just take it away’.

“Ms Toote walked behind Mr. Burch and discarded the drink into a nearby garbage container. Mr. Burch, who was still sitting at the slot machines, did not see Ms Toote discard the drink as he had his back to her at that time. Ms Toote then walked pass Mr Burch and made a gesture with her hand. After walking a few steps she turned around and walked in the opposite direction passing Mr Burch again before leaving the area.”

Sir Ian, in finding for Ms Toote, described the incident as “an unfortunate case of a situation escalating to an unpleasant outcome”. He concluded: “In my view this was not a case where Ms Toote belligerently or pugnaciously refused to give Mr Burch a complimentary drink until she was given a tip and argued with him about the matter...

“Ms Toote was wrong in not serving the drink immediately upon approaching Mr Burch. However, beyond that, I did not accept that two of the aggravating factors had occurred – the taunting of Mr Burch and the unprofessional and rude conduct of Ms Toote - and the third one – throwing the drink in the garbage – was inconsequential as there was no evidence that Mr Burch had seen it and he had not mentioned it in his complaint.

“Having looked at the case in the round, and bearing in mind all the circumstances of this case as outlined above, including my holding that the investigation by the company was not reasonable and fair, I decided that based on the substantial merits of the case the dismissal of Ms Toote was unfair.”

Sir Michael agreed with Sir Ian, finding: “In my judgment, the critical question is whether the appellant, as a reasonable employer, on the evidence that it had could come to the determination that Ms Toote refused to give or denied Mr Burch the drink because he did not give her a tip. That was the basis of the summary dismissal.

“In my judgment, there is an important distinction between ‘refusing to give the customer a drink’ and waiting with the drink on the tray when the customer is searching for money to give a tip. It was the customer who told her to take the drink away, not her refusing to give him the drink.”

And he added: “Whilst Ms Toote’s behaviour may well have resulted in some disciplinary action (Ms Toote admitted that she was wrong), in my judgment no reasonable employer could have come to the conclusion that summary dismissal of an employee of over 30 years was a reasonable response to that incident. Not every infraction by an employee warrants summary dismissal....

“Dismissal for an isolated incident of misconduct will rarely be fair, although in some circumstances the incident will be sufficiently serious to justify dismissal for a first offence. This is particularly so where the misconduct involves an act of dishonesty or demonstrates a complete disregard for the interest of the employer or fellow employees.

“Generally, dismissal for misconduct will only be a reasonable sanction if the employee had committed earlier acts of misconduct and has been warned that further incidents may lead to dismissal. There is no evidence of that in this case.”