The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Baha Mar’s casino affiliate breached its own employee handbook and failed to carry out a proper investigation in dismissing a 22-year veteran, the Court of Appeal has found.

Backing the Industrial Tribunal’s finding that Yvette Ferguson, a Crystal Palace Casino shift manager, was unfairly dismissed, the Appellate Court said the investigation into the incident that led to this amounted to little more than “she says, she says, she says”.

Noting that Baha Mar’s failure to call a key witness meant Ms Ferguson did “not have a fair hearing”, the Court of Appeal also blasted the casino owner for a “clear violation” of the employee disciplinary procedures laid out in the staff handbook.

The verdict, written by Justice Conteh, and with which his two fellow judges both agreed, noted that the developer’s casino affiliate, B.M.P. Ltd, went straight to terminating Ms Ferguson instead of implementing disciplinary measures before that.

And the Court of Appeal verdict clarified yet another aspect of the Employment Act, finding that unfair dismissal was not confined to just the five circumstances contained in the legislation.

In his judgment, Justice Conteh noted that Ms Ferguson had been employed at the Crystal Palace Casino from October 1988 up until her termination on May 15, 2010.

Outlining the background to the case, the Court of Appeal said it was related to the manner of Ms Ferguson’s entry into the casino - whether by the side door or through the front entrance.

The crux of the case, though, was how her entry came to the attention of Baha Mar’s management, and in turn, how Ms Ferguson “came to know that the matter had been reported to management”.

The shift manager denied speaking to the Crystal Palace Casino’s surveillance employees about the incident. This would have breached the casino’s confidentiality policies, but Ms Ferguson denied speaking to the surveillance staff.

Baha Mar’s casino affiliate, after carrying out what it deemed “a full investigation”, determined that Ms Ferguson was lying and cited this alleged “dishonesty” as its reason for terminating her.

While arguing that she could enter through the Crystal Palace’s front door if not on duty, Ms Ferguson’s case “was that she did not have any conversation with the surveillance employee regarding her manner of entering the casino, and that she was never given an opportunity to be present with the two other employees when the allegations of her supposed conversation were made to management”.

While the Industrial Tribunal had indeed found that Ms Ferguson was unfairly dismissed, Baha Mar sought to overturn it on the grounds that the case’s circumstances fell outside the five categories specified in the Employment Act’s sections 36-40.

But, rejecting this, the Court of Appeal found: “We find ourselves in agreement with the Tribunal that unfair dismissal is not confined to the five instances provided in sections 36-40 of the Act.

“We find support for this conclusion from the structure and spirit of the Act. We do not believe that the legislature, by mentioning the five instances itemised in these sections, intended to freeze forever other possible instances of unfair dismissal.”

And the Court of Appeal noted that the Employment Act’s section 35 explicitly stated that “the substantial merits of the case” would determine whether an employee’s dismissal was fair or otherwise.

In Ms Ferguson’s case, the Court of Appeal backed the Industrial Tribunal’s finding that Baha Mar’s casino affiliate “did not undertake a reasonable investigation”.

“On the evidence and materials before the Tribunal, we find it difficult to disagree with it that there was no reasonable investigation undertaken by the [Crystal Palace] into the alleged dishonesty of the respondent, in the circumstances of the case,” the Court of Appeal found.

“It is difficult to escape the conclusion that in this case, the [casino] truly based its decision to terminate the respondent on a mere: ‘She says, she says, she says’.”

The inquiry into how Ms Ferguson came to know that her casino entry had been reported to management was found by the Industrial Tribunal to be “not full and fair” - a conclusion backed by the Court of Appeal.

It noted that B.M.P. Ltd had failed to interview a Ms King, who Ms Ferguson said was present when she briefly spoke to the surveillance staff.

“This failure resulted in [Ms Ferguson] not having a fair hearing before the rather peremptory termination of her employment,” the Court of Appeal ruled.

“The termination itself, coming after the return to work by [Ms Ferguson] from a two-day suspension, following a flawed investigation, we agree with the Tribunal was, in the circumstances, egregiously unfair and could not be sustained in the light of the reason proffered by [Baha Mar], the ‘dishonesty’ of the respondent.”

The Court of Appeal added: “More significantly, in our view, it is manifest that the [casino] did not comply with the provisions of its Handbook given to employees, particularly the section in it on the issue of ‘Progressive Discipline’, and the steps stated therein for the disciplining of employees.”

In Ms Ferguson’s case, Baha Mar bypassed verbal and written warnings, and the Court of Appeal added: “None of the intermediate steps antecedent to the termination of [Ms Ferguson] was observed, in clear violations of the provisions of the Handbook.”

The only crumb of comfort for Baha Mar and its casino affiliate came in the Court of Appeal’s decision to reduce the sum payable to Ms Ferguson, as compensation for unfair dismissal, to $85,925 from $121,727.