ERT rules against dismissed senior bank employee

A former senior employee of a local commercial bank, who was caught at Grantley Adams International Airport with some $22,000 in United States foreign currency, has lost her claim for unfair dismissal from the financial institution.

The ruling was handed down today by the Employment Rights Tribunal (ERT) Chairman, retired High Court Justice Christopher Blackman in the unfair dismissal case brought by ex-sales supervisor Sonya Toppin against her former employer Republic Bank (Barbados) Limited.

Justice Blackman said the decision to throw out Toppin’s claim was based in part on her admission that she was about to fly to the United States with about US$20,000 in foreign currency for which she was not granted legal permission to carry, an act that constituted gross misconduct.

“In the circumstances of this matter, the tribunal is of the view that the respondent was justified in dismissing the claimant for gross misconduct given the admission that, on January 7, 2017 she travelled out of Barbados with foreign currency cash in excess of the permitted foreign currency equivalent of BDS$1,000,” the retired Appeals Court judge declared.

“Moreover, the evidence also showed that the claimant failed to declare the excess or had sought Exchange Control approval for the excess. The source of the foreign currency has never been accounted for and in the context that the respondent is a financial institution, this was very likely a troubling concern,” he added.

Justice Blackman cited the unfair dismissal case which had been adjudicated against Chefette Restaurants Limited which stated that “a single failing on the part of an employee can amount to gross misconduct”.   

He said this was the ground relied upon by the bank in its letter of termination dated April 13, 2017.

“The tribunal respectfully adopts the definition of gross misconduct in the US case of Giles v. District of Columbia Department of Employment Services (August 31, 2000) cited in Chefette at paragraph 90 that gross misconduct is “Conduct that is so outrageous that it shocks the conscience; intentional behaviour which deliberately or wilfully threatens the employer’s rules, or shows a repeated disregard for the employee’s obligations to the employer or disregards the standards of behaviour which an employer has a right to expect of its employee.”

The ERT head also referred to another legal authority as illustrative of intentional behaviour that so seriously breached the employer’s rules that it could not be reasonably expected that the employment relationship would continue.

“In the context of the instant matter, the tribunal is of the view that the Claimant’s intentional behaviour cited in the foregoing definition of gross misconduct may be seen in the procurement of the two loan bonds from the Barbados Public Workers’ Cooperative Credit Union issued in November and December 2016, in the sums of $21,500.00 and $15,734.71 to enable the Barbadian currency to be converted to US dollars,” the retired High Court judge stated.

Justice Blackman was referring to the evidence of Toppin’s mother Jennifer Yvette Toppin, who said in a sworn affidavit that on November 23, 2016 she obtained a loan for $21,500.00 from the Barbados Public Workers Co-operative Credit Union, and that subsequently the proceeds of that loan were converted into United States currency and given to her daughter for travel to the USA.

“How? Who provided the US currency for the Barbados cash?” the tribunal chair asked.

Justice Blackman said while the tribunal recognizes that prior to the incident, the claimant had an unblemished record with the bank as acknowledged by management, the issues involved in the incident went to the core of respondent’s business.

According to the evidence, Toppin, who started employment with the financial institution on February 9, 2005 as a clerk when it was the Barbados National Bank, was dismissed on April 13, 2017, three months after the money was seized by Customs officials at the airport on January 7, 2017.

Justice Blackman said the claimant continued with her travel to the United States and returned to Barbados on January 10, 2017.

He said that consequent to rumours circulating on social media and generally in relation to the incident, management of the Republic Bank asked the claimant to provide an explanation of the incident at the airport.

The evidence also revealed that by letter dated February 7, 2017 Toppin was placed on suspension with her pay and other benefits pending an investigation into the matter.

The former sales supervisor claimed that the dismissal was unfair, was in breach of the rules of natural justice and/or procedural fairness and that the bank had failed to provide disclosure of the documentation and source by which it had become aware of the amount of US$22,000 seized on January 7, 2017.

It was further contended that since there had been no convictions either under the Exchange Control or Anti -Money Laundering laws of Barbados, there was no basis for dismissal by the bank and that the claimant’s conduct did not rise to the level that warranted summary dismissal.

Toppin’s attorney Larry Smith Q.C. also submitted that at the time the incident occurred his client was lawfully absent from work and was not engaged in the bank’s business.

The ERT head ruled that an examination of the legal authorities offered little support for Toppin’s attorney’s contention that because she had not been convicted either under the Exchange Control or Anti-Money Laundering laws of Barbados, there was no basis for dismissal by the bank.

Justice Blackman also rejected the argument by the claimant’s attorney that the absence of her attorney-at-law from the disciplinary proceedings on April 10, 2017 should be regarded as a procedural irregularity, particularly in the face of the declaration by counsel that “While my client is available, I, as her representative, am not.”

The tribunal head also pointed to the several options for attendance which had been provided to the claimant’s counsel.

“The tribunal has noted that at the hearings … Mr. Smith was accompanied by co-counsel. Indeed, they were two at the disciplinary hearing held on March 21, 2017. The complaint such as it is, should therefore be seen as empty and moreover as disingenuous, as it was open to Mr. Smith to send one of the accompanying counsel to the April 6 and 10, 2017 meetings and he failed to do so,” Justice Blackman ruled.

“It is our view that when an attorney-at-law appears at the employer’s proceedings, the role of that attorney-at-law is no different than that of the non-legal friend, representative or shop steward.

“The companion is entitled to address the hearing in order to put the worker’s case, sum up that case, respond to any views expressed at the hearing and to confer with the worker during the hearing. He is not however entitled to answer questions on behalf of the worker,” declared the retired High Court judge.

“We urge employers to establish their own rules of procedure for the conduct of investigative/disciplinary meetings. A breach of the employer’s guidelines entitles them to immediately adjourn or terminate the hearing and proceed to take such decisions as it may think fit.

“We reiterate that it is the obligation of the employer to provide a process for the hearing of matters relating to incidents involving their employees that accords with the rules of natural justice, and any prescribed statutory requirements. Breach of such rules or non-compliance with any statutory obligations by the employer may well have consequences, but it is not for an attorney-at-law or other representative, to act in such a manner as to frustrate a hearing,” stated the ERT head.

Jamila Smith appeared in association with Larry Smith while Kevin Boyce and Michael Koeiman represented Republic Bank.

Commissioners Edward Bushell and Frederick Forde completed the tribunal panel.
(emmanueljoseph@barbadostoday.bb)