Shyben A. Madi & Sons loses counter claim

Magistrate Colley of the Kanifing Industrial Tribunal recently dismissed a counter claim filed by Shyben A. Madi & Sons against one Ida Suso Faye, former employee of the company.

Ida Suso Faye, the plaintiff, sued the company for the recovery of the sum of D9,325,000 being salary, leave and social security due up to retirement on constructive dismissal.

She claimed interest at 25 percent and cost.

But she was awarded by the tribunal the sum of D288,000 as compensation for unfair dismissal and D24,000 for September, 2011, salary.

She was also awarded 5 percent interest of the total judgement sum and cost of  D30,000.

The company’s counter claim was the sum of D84,000 being clandestinely received and converted by the plaintiff, D235,006.96 as special damages being monies under the responsibility of the plaintiff that she negligently allowed one Mr Alassan Bojang to convert for his own use, D500,000 being general damages arising from the loss of financial data and records illegally deleted, converted or misappropriated by the plaintiff, D200,000 being general damages arising from the plaintiff’s fraud and negligence, interest at the rate of 18 percent per annum on the said sum and cost.

The tribunal accordingly dismissed the counter claim filed by the company.

Delivering his judgment, Magistrate Colley summarized the testimonies of the plaintiff and the witnesses of the defendant.

He said that at the conclusion of the case, the defence counsel filed their brief and the plaintiff also filed her own brief.

He stated that the issues for determination in the claim and counter claim were whether the plaintiff was constructively dismissed and whether the defendant was entitled to the counter claim.

Magistrate Colley adduced that on issue number one, the plaintiff claimed that she was subjected to harassment at the hands of the Motor Vehicle Department Manager.

He said she claimed she was tormented with unending questioning as to when she would be going on maternity leave, how long she would be away on maternity leave, that she was shouted at in the presence of her juniors, and that she was accused of stealing and sidelined by the Motor Vehicle Department Manager who dealt directly with her assistant, Alassan Bojang.

Magistrate Colley posited that the Motor Vehicle Department Manager said he questioned the plaintiff on several occasions in order to know when the plaintiff was proceeding on maternity leave and how long she intended to stay because the plaintiff occupied a senior position that could not be left vacant.

He further stated that harassment means a form of prohibited discrimination on grounds of sex, race, sexual orientation, belief or disability that occurs where someone is subjected to conduct that violates their dignity or that created an intimidating, hostile, degrading, humiliating or offensive environment.

He posited that under section 86 of the Labour Act, constructive dismissal means when an employee terminated the contract of employment without notice or with less notice than the employer is entitled by any statutory provision or contractual term if the employer’s conduct has made it reasonable to expect the employee to continue the employment relationship. 

He added that the plaintiff in this case tendered her resignation and indicated her intention to serve her one month notice but was suspended for two weeks without salary, a day before the expiration of her notice.

Magistrate Colley adduced that if it could be reasonably concluded from the circumstances of the plaintiff’s resignation that she was constructively dismissed, then pursuant to section 84 of the Labour Act, her dismissal was unfair.

He further stated that six months maternity leave is a vested right and benefit of the plaintiff under section 71 of the Labour Act and section 20 of the Women’s Act. 

He added that the plaintiff reserved the right to enjoy the entire six months period without prejudice.

He said in the event that the plaintiff decided to resume work prior to the expiration of the six months, she was required to give notice of her desire to resume, adding that this should be a unilateral decision emanating from the plaintiff and not from the defendant.

Magistrate Colley stated that the fact that the plaintiff promised to return after one month or so when her health permitted her, was not an issue after when approval was given for her to proceed on six months maternity leave.

He further adduced that after her maternity leave, she alleged that she was accused of stealing, adding that it was proper for her to be asked to produce receipt of payment for invoices prepared in her name, and that she could not locate the receipt for D1260 and according to the Internal Controller, she had to pay it again.

Magistrate Colley posited that she produced evidence of salary deduction towards the liquidation of the sum of D13,452 for invoice no. 026518, adding that this refuted the assertion of the Motor Vehicle Department Manager that it was confirmed by  Head Office that there was no deduction made from the plaintiff’s salary.

He further stated that from the entirety of evidence, the tribunal was convinced that the plaintiff resigned because there was lack of mutual trust and confidence in her employment relations with the defendant.

He adduced that Alassan Bojang, who confessed to converting the sum of over D300,000, admitted that he was the sole culprit to blame for the sum, adding that the defendant failed to show how the plaintiff breached the duty of care in this case.

Magistrate Colley stated further that no fraudulent activity on the part of the plaintiff was proved, adding that the counter claim filed by the defendant lacked merit.