Employment Rights Tribunal (ERT) Chairman, retired High Court Justice Christopher Blackman.
A former Sales Supervisor of Republic Bank Barbados Limited has lost her case of unfair dismissal against the local commercial bank.
On Friday, Employment Rights Tribunal (ERT) Chairman, retired High Court Justice Christopher Blackman, ruled against former employee Sonya Toppin’s claim against the financial institution.
In January 2017, Toppin was found by Customs and Immigration officers at the Grantley Adams International Airport to be travelling overseas with US$22,000, which is in excess of the island’s foreign currency travel allowance. Toppin, who was on vacation at the time, continued her travel.
She subsequently lost her job in April 2017, after management asked her to explain the airport incident, and placed her on suspension with pay while investigating the matter. After several disciplinary meetings were held between management, the respondent and her attorneys, the former took the decision to dismiss Toppin on the grounds of gross misconduct, noting that her actions had been contrary to the bank’s Ethics and Operating Principles Compliance with Laws and Regulations, which require employees to follow applicable laws and regulations of every jurisdiction in which the bank operates.
Toppin claimed, amongst other things, that the dismissal was in breach of the rules of natural justice and/or procedural fairness, and that a breach of the Customs and Exchange Control Laws when she had not been convicted of committing any offence under those laws or the Anti-Money Laundering Act of Barbados, was not sufficient to justify being terminated from the bank where she had worked for over a decade.
Handing down his ruling, Justice Blackman stated: “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$10,000. 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.”
A sworn affidavit was presented in a disciplinary hearing by Toppin’s mother, asserting she had obtained the sum of $21,500 by loan from the Barbados Public Workers’ Co-operative Credit Union, and that subsequently the proceeds of the loan were converted into United States currency and given to her daughter for travel to the USA.
Justice Blackman however asked, “How? Who provided the US currency for the Barbados cash?”
Citing the April 2016 unfair dismissal case brought against Chefette Restaurants, where it was stated “a single failing on the part of an employee can amount to gross misconduct”, Justice Blackman outlined the Tribunal’s adoption of “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’”.
While the Tribunal recognised that prior to the incident, Toppin had an unblemished record with the bank as acknowledged by management, it noted however the issues involved in the incident went to the core of the respondent’s business.
Toppin was represented by Attorneys-at-law Larry Smith and Jamila Smith, while Republic Bank was represented by Kevin Boyce and Michael Koeiman. (JMB)