Travis Desir v Paramount Printers and Morris Charles
| Jurisdiction | Dominica |
| Judge | COTTLE J |
| Judgment Date | 17 August 2010 |
| Judgment citation (vLex) | [2010] ECSC J0817-2 |
| Court | High Court (Dominica) |
| Docket Number | DOMHCV2005/0219 |
| Date | 17 August 2010 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Before: The Hon. Justice Brian Cottle
DOMHCV2005/0219
Mrs. Dawn Yearwood—Stewart for Claimant
Ms. Lisa Defreitas for first defendant
Mr. Michael Bruney for Second Defendant
The claimant had been making continued request for protective gear and apparel. On 17th August 2004 the claimant resumed duty after vacation leave in St. Lucia. He was assigned duties. He refused to carry out those duties. He says that his long standing concerns about safety apparel and gear had not been addressed. He requested to see Mr. Frank Baron the Managing Director of the first defendant.
Mr. Davidson Baron, the General Manager, was the person who had given the claimant his work assignment. He is the son of Mr. Frank Baron. He says he thrice requested the claimant to carry out his work assignment. When the claimant failed to comply, he dismissed the claimant. The issue is whether the claimant was justified in refusing work until his safety concerns were addressed or whether his refusal to work justified his summary dismissal.
Under the collective agreement the company was entitled to terminate the services of any employee without notice or payment of any severance pay or other terminal benefits where the employee has been guilty of serious misconduct affecting his employment. Serious misconduct is defined as suchmisconduct that the company cannot reasonably be expected to take any course other than to terminate the employment of the employee.
[7] The claimant says that he was given gloves for the purposes of his employment. He describes these as food handler gloves. He received no apron, overall, or respirator. Mr. Davidson Baron for the first defendant says that the claimant was provided with proper gloves, aprons and respirators. His sister, who was General Manager before him, testified that employees, including the claimant, were provided with gloves —she describes these as nitrile gloves —aprons, and respirators.
A report from a team of inspectors from the government of Dominica which carried out an inspection of the first defendant's facilities on September 24th 2004, shortly after the claimant was dismissed, assists in resolving this conflict. At the time of the visit, the inspection team, consisting of the Acting Labour Commissioner, the senior Environmental Health Officer and an inspector from the Pesticides Control Board, found that "no protection gear of any kind was being worn or used by the employees neither was there any evidence of the availability of such protective gear at the facility."
I find it is more likely that the version of the claimant is correct and that the first defendant failed to provide any protective or safety equipment. I reject the evidence of Davidson Baron and his sister Annie Benjamin on this issue and accept that of the claimant. The question still remains however. Does this failure by the company justify the claimant's refusal to work? In his evidence the claimant says he refused to work because of the absence of the protective and safety gear and unspecified personal problems. As nothing further was said of these personal problems I do not take this into account in arriving at my conclusion.
The principles which guide the court in its consideration of a claim of wrongful dismissal such as the present case, have been helpfully restated by Haniprashad-Charles J in the recent case ofElphina Abraham v Sunny Canbbec Herbal and Spice Co. Ltd BVIHCV2007/0122 decided on April 20th 2010. The Learned judge reviewed the authorities. At paragraph [18] she puts the position shortly
"However, an employer has a common law right to dismiss his employee summarily on the grounds of the employee's serious misconduct, disobedience to lawful orders and negligence."
Each case will turn on its own facts. Mr. Desir had been working without the requisite safety gear for some five years—all of his working existence with the defendant. He was a member of a trade union and had mechanisms open to him under his collective bargaining agreement to address his concern with the defendant.
I do not in anyway minimize the first defendant's failure to provide safety equipment. However their failure cannot provide the claimant with justification for refusing to work. He could have had no reasonable fears for his own safety as he had been performing those duties from five years in safety. Had he, and other employees, after notifying the first defendant and having not had their concerns satisfactorily dealt with, decided to go on strike, they may well have been justified.
In the circumstances of this case I found that the claimant was unreasonable to refuse to carry out the orders of his employers and thus they were justified in his summary dismissal. I therefore dismiss the claim against the first defendant and award costs to the first defendant as agreed in the sum of $5,000.00.
The claim against the second defendant is more nebulous. In the claim form the claimant seeks "$5,000.00 representing cost and special damages due to the tortuous actions of the second defendant." In his statement of claim at paragraph 14, the claimant avers that
"on or about 27th August 2004 the second defendant unlawfully entered the apartment of the claimant and tossed his belongings into the street."
In the following paragraph he claims that he was "unlawfully evicted" and as a consequence of these occurrences he suffered loss and damage as his goods were destroyed stolen and/ or damaged. He goes on to list particulars of damage which I reproduce.
| 1. Three gold chains | -$1,400.00 |
| 2... |
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