The Tribune

NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has overturned an Industrial Tribunal's order for Super Value to pay one of its former assistant managers $10,000 for firing him for gross negligence.

The former manager reportedly said he was too tired from working a double shift to respond appropriately to a security company's warnings about what ended up being a robbery of one of Super Value's ATM machines six years ago.

Appellate President Sir Hartman Longley, and fellow Justices Roy Jones and Milton Evans, in a written ruling, said "being too tired" cannot excuse Vaccaro Adderley from not personally responding to and verifying Super Value's security alert, especially when that excuse was based on the "false premise" he had worked a double-shift when Super Value's records showed he didn't.

Additionally, the appellate judges said as a matter of "simple commonsense", rather than checking the store to ensure his employer's property was safe and secure as was his duty as manager, Adderley, by his own admission, "took the chance that birds or rodents may have been responsible for the triggering of the alarm".

Thus, the appellate judges said Super Value's decision to summarily dismiss Adderley should not have been interfered with by the Tribunal, and as a result set aside the $10,500 the Tribunal had previously awarded to Adderley for his wrongful dismissal.

According to the ruling, Adderley had been employed at Super Value from March 17, 2008. At the time of his dismissal he was an assistant manager at the food store chain's Prince Charles Drive Shopping Centre location.

On July 18, 2012, Adderley was the person in charge of the store as the manager had gone on vacation the previous Monday.

Around 4:02am on July 18, Adderley received a call from the store's security company to advise him they had detected motion in the store.

In response, Adderley told them to monitor the situation and call him back if necessary. His explanation for giving that response was he knew there was a rodent problem at the store, as well as that there were two birds that had made it into the store that were flying around constantly.

He further added he was tired because he had worked a double-shift the day before.

About an hour after the first call, the security company called Adderley back to again advise him that they detected motion in the store.

In response, Adderley simply told them to call the police.

The security company called the police, who in error went to the Winton location and not the Prince Charles Drive store.

Adderley did not personally call the police, and neither did he make any effort to go to the store to ascertain whether anything untoward was happening, or open the store to allow the police to investigate, as there would have been no legitimate reason for anybody to be in the store at that time of the morning.

Police

At 6:45am Adderley went to the store to open it up for business, and upon entering the store found it's ATM had been broken into. It was then that he called the police, as well as Super Value's Operations Manager Kendrick Moss, and an investigation was launched into the incident.

Adderley was interviewed by Mr Moss concerning the circumstances surrounding the incident, and why he did not personally call the police and go to the store to investigate what has happening or to open the store for the police.

Mr Moss said the response given to him by Adderley was he was too tired, to which Mr Moss said he replied by telling Adderley not doing so was a "major infraction".

At the end of the following week, Adderley went on two weeks' vacation, and upon his return, he was terminated summarily for gross negligence.

According to the COA ruling, Adderley had no record of previous misconduct.

At the tribunal hearing of the matter, three people gave evidence, namely Adderley, Mr Moss, and Candace Nottage-Weatherford of the security company. The appellate judges said there was no dispute over the facts of the matter, save for two issues: whether Adderley in fact worked two shifts the day before the incident in question, and Super Value's policy concerning the security alarm.

Concerning the former, Mr Moss testified Adderley did not work a double shift that Tuesday; he had relief that day. Rather, Adderley worked a double shift that Monday.

Notwithstanding that evidence, the Tribunal's vice-president still asserted: "Based on the evidence of (Adderley) and Mr Moss, managers worked 48 hour shifts on a six-day week. He was tired. Whether the evidence that he had worked a double-shift prior to the robbery is questionable, the fact remains that a 48-hour work week in the retail grocery industry can be gruelling and takes its toll on the body.

"The Tribunal is not condoning this conduct but realizes that the realities of life necessitate that realistically if one has just worked a shift, left work and is called back some hours later in early hours of the morning any person would be reluctant to do so."

However, the appellate judges said though "ambiguous", that finding by the Tribunal was not in fact a finding that Adderley worked a double-shift as he claimed, but instead "just a finding that working a 48-hour work week over six days in the retail grocery store business can in the Tribunal's judgment be tiring."

The appellate judges said they were not satisfied there was any "evidential basis" for the Tribunal's finding in that regard, but maintained it was not a finding that Adderley worked a double-shift on the Tuesday as he claimed was the basis of his weariness.

Concerning the store's security alarm policy, Adderley had maintained there was no policy in place, while Mr Moss' evidence suggests there was no written policy, but managers were allowed to shadow other managers and thus learn the policy.

According to Mr Moss' evidence, when an alarm is activated, Sure Alarms would call the store manager, who is then to call back to verify that the call is legitimate. The manager is then to request the alarm company to call Police Control Room to provide a vehicle to meet the manager at the store. During that phone call the manager is to find out from the company which zone or zones was activated so that when he/she goes to the store with the police they can go to that zone or that area of the store.

Escort

Mr Moss' evidence further states the manager is to go to the store and meet the police, walk the store with the police, and further asserts if there are no police officers present to call the alarm company, ask them to call again. Additionally, Mr Moss said managers would sometimes stop at a nearby police station and get an escort to the store to examine the premises.

He said if Sure Alarms could not get the manager, they would call the assistant manager.

If they can't reach any of them, they would call him and he would try to reach them himself.

He further stated that managers are trained for six months to a year, and are moved from store to store to allow them to work with other managers to receive training on the policies and procedures.

The Tribunal had ruled as there was no evidence that Adderley ever worked under a manager who may have caused any such policy to be passed on to him, it was not of the opinion there was a proper policy in place.

However, the appellate judges said the Tribunal's decision is "fundamentally wrong", and said issue for determination isn't a matter of policy, but is a "matter of commonsense".

"In our view, there did not need to be any written policy that when the security alarm company calls a second time a manager should himself call the police and proceed to the store to open it to enable the policy to investigate or anything to that effect. It is simple common sense," the appellate judges said.

"By his own admission Adderley knew the alarm went off but took the chance that birds or rodents may have been responsible for the triggering of the alarm.

As a manager in charge of the Prince Charles Drive store at the time he owed a duty to take steps to secure and safeguard the property of his employer.

The judges added: "Even if he thought that the alarm may have been triggered falsely, since he had no way of knowing, he had a duty to go and check the store to ensure that the property was safe and secure.

"He may have even minimized the damage if he had responded in a timely manner".

Attorney Kelphene Cunningham represented Super Value. Bernard Ferguson represented Adderley.