Lyndon Roberts v Grenada Co-Operative Bank Ltd

JurisdictionGrenada
JudgeActie J
Judgment Date09 August 2023
Neutral CitationGD 2023 HC 21
Docket NumberCLAIM NO. GDAHCV2018/0421
CourtHigh Court (Grenada)
Between:
Lyndon Roberts
Claimant
and
[1] Grenada Co-Operative Bank Limited
[2] Inspector 117 Sheldon Thomas
[3] WPC 806 Frances Mc Lean
[4] The Attorney General of Grenada
Defendants
Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV2018/0421

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mr. Nazim Burke for the Claimant

Ms. Deborah St. Bernard with Ssavanna Seales for the bank

Mr. Adebayo Olowu for the Second to Fourth Defendants

Actie J
1

This claim raises the issues of wrongful dismissal, wrongful arrest, false imprisonment, and malicious prosecution.

2

The claimant was employed as a teller by the bank, when, on 11 th November 2013, he experienced a cash shortage in the sum of $5,444.08 at the closure of business day and was thereafter dismissed on 20 th November 2013.

3

In an amended claim form filed on 27 th July 2022, the claimant claims as against the bank, damages for wrongful dismissal, and as against all the defendants' damages for wrongful arrest, false imprisonment, malicious prosecution, general damages, interest, such further or other relief and costs.

4

The claimant contends that he was wrongfully dismissed by the bank with immediate effect, without giving him the required six months' notice in writing or payment in lieu thereof and without affording him an opportunity to offer a defence. The claimant states that the manner in which he was dismissed was abrupt, offensive, harsh, oppressive and contrary to the rules of natural justice, and that same caused him distress.

5

The claimant alleges that on or about 15 th January 2014, the bank wrongfully and without legal basis or excuse directed and/or procured three officers from the Financial Intelligence Unit (hereafter referred to as “FIU”) of the Royal Grenada Police Force to attend his house and arrest him on an allegation that he had stolen the missing funds. The claimant claims that he was taken into custody of the FIU where he was interrogated and released without charge.

6

On or about 30 th April 2014, the claimant further alleges that he was again arrested at his home by the second defendant on the allegation of stolen money by reason of employment. The claimant avers that he was taken into custody, processed as a prisoner and maliciously and without reasonable and probable cause, charged with stealing the sum of $5,444.08. On 26 th June 2015, the Director of Public Prosecutions discontinued the criminal proceedings against the claimant.

7

The claimant contends that he was wrongfully arrested and falsely imprisoned and deprived of his liberty for a period of several hours. The claimant also contends that the bank acted out of spite and malice toward him by causing him to be arrested during the day in the presence of his infant son, subjecting him to humiliation and disgrace.

First Defendant's case
8

The bank (hereafter also referred to as “the bank”) denies that its dismissal of the claimant was wrongful. The bank states that its termination of the claimant's employment was done in accordance with the provisions of the Employment Act which requires two months' notice as opposed to six months as claimed by the claimant.

9

The bank further states that the claimant's termination of employment was on the basis of an unexplained cash shortage in the sum of $5,444.08. The bank states that the claimant had a prior breach of the terms of his employment in March 2012 when he admitted to altering the details on a cheque.

10

The bank denies that it acted wrongfully or without legal justification or excuse by directing or procuring law enforcement officers as alleged by the claimant. The bank contends that upon the cash shortage and summary dismissal of the claimant, it filed a suspicious activity report with the FIU. The bank denies that it is responsible for any damage or injury to the claimant as alleged.

Second, Third and Fourth Defendants' case
11

The second, third and fourth defendants state that on or about November 2013, a complaint related to an allegation of a possible theft by the claimant was made by senior officials of the bank to the FIU.

12

The FIU launched an investigation, interviewed, and obtained statements from the bank's employees between the period of December 2013 and January 2014.

13

On 15 th January 2014, the second defendant together with other police officers detained and interviewed the claimant. The second defendant avers that the claimant was detained for about two hours.

14

The second, third and fourth defendants state that the claimant was unable to give any explanation or good account of the shortage, and the source of the cash shortage was not discovered.

15

On the basis of the claimant's lack of any explanation for the missing funds, the other evidence gathered during the investigation, and after consultation with senior officers of the FIU department, the second, third and fourth defendants aver that there were reasonable grounds to believe that the claimant had stolen the money from the bank. He was arrested and charged with the offence of stealing by reason of employment on 30 th April 2014.

16

The second, third and fourth defendants aver that it cannot be said that the claimant was falsely imprisoned, or that his arrest and charge were without probable cause or reason.

17

The second and third defendants reject that they maliciously and without reasonable cause continued to prosecute the claimant, and deny that the claimant is entitled to relief against them.

Legal Analysis
Whether the claimant was wrongfully dismissed by the bank
18

The bank in a letter dated 20 th November 2013, dismissed the claimant in purported accordance with Section 74 of the Employment Act CAP 89. Counsel for the claimant submits that the bank has failed to prove that it had a valid reason for terminating the employment of the claimant, and states that the dismissal of the claimant was in contravention of Section 74 of the Employment Act.

19

Section 74 states the following:

  • “(1) The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the enterprise, or breach of contract of employment or disciplinary rules.”

20

The claimant states that he followed all operational protocols established by the bank in the event of a cash shortage, and that other tellers have experienced larger shortages and had not been terminated. The claimant contends that the decision of the bank to terminate his employment was motivated by the bank's desire to end its relationship with the claimant on account of his attempts to unionize workers at the bank, given that such unionization was not desired by management.

Summary Dismissal
21

The bank summarily dismissed the claimant and asserts that the basis upon which it terminated the employment of the claimant was the unexplained cash shortage.

22

Section 77 of the Employment Act states:

“An employer is entitled to dismiss summarily where the employee is guilty of serious misconduct of such a nature that it would be unreasonable to require the employer to continue the employment relationship.”

23

Section 2 of the Employment Act defines serious misconduct as:

“‘serious misconduct’ means any grave offence which includes, but not limited to unprovoked assault, wilful damage to the employer's property, proven dishonesty, refusal to carry out a reasonable request in accordance with duties”

24

In Henry v Mount Gay Distilleries Limited (Barbados) 1 it was stated that:

“It is well established that summary dismissal is only justifiable where there has been a breach of one or more duties of the employee and such breach constitutes a repudiation of the contract of employment as being inconsistent with the continued employment of the employee”

25

The question as to whether misconduct is such as to justify summary dismissal is a question of fact and degree 2, and the conduct complained of must be of such a

grave and weighty character as to amount to a breach of the confidential relationship between employer and employee 3
26

The claimant states that in the present case, the cash shortage was a single and isolated incident and that it ought not to have evoked such a harsh response from the employer. The claimant relies on Raymond Auguste v Sandy Bay Management Company Limited 4 which states that:

“A stern warning letter and reprimand indicating that, should such incident ever recur, it would warrant dismissal would have been more appropriate.”

27

The Raymond Auguste case concerned an employee's wilful disobedience of a direct order, in the circumstances of behaviour that was inconsistent with the model employee that the records showed the employee to be, and is distinguishable from the circumstances before this court.

28

In the extant case, the bank submits that the claimant had previously received three letters of reprimand for three separate incidents prior to his dismissal. In a letter dated 15 th July 2010, Mr Richard Duncan, Managing Director of the bank, issued a letter of reprimand to the claimant in relation to the incorrect loading of cash in the ATM, whereby the claimant accepted full responsibility for the non-compliance with the Bank's policies and procedures. The second occasion on 10 th February 2011, a formal letter of reprimand was issued to the claimant by Marquez Mc Sween, officer in charge, for dishonest conduct in leading his supervisor to believe that he was attending a funeral which he did not attend. Thirdly, in a letter of reprimand dated 13 th March 2012, the claimant was suspended for two weeks without for pay for grave and fraudulent misconduct by his collaborative actions in an altered return voucher. The claimant in response to...

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