Dec 18, 2008, 4:41 AM
The plaintiff in the lawsuit at the Kanifing Industrial Tribunal involving Ocean Bay Hotel has failed in the claim she filed against the hotel for wrongful termination of her service.
Mama Cham Deen claimed D250,000 as damages for breach of contract, interest at the rate of 25 per cent and cost.
In his judgement, Magistrate Dawda Jallow told the tribunal that there were two main issues for determination in the claim, which were whether the plaintiff was wrongfully dismissed and whether she was entitled to D250,000 for breach of contract.
He said he would like to begin by stating the following key guiding principles; that the employer borne the burden of proving that the employee’s dismissal was for a fair and valid cause and any doubts about the evidence presented by the employer and the employee must be resolved in favour of the employee.
Magistrate Jallow further stated that the tribunal was aware that not all dismissals are automatically unfair.
He posited that the procedure followed in dismissing an employee was important in determining the fairness or otherwise of the dismissal.
The evidence before the tribunal in the claim revealed that the plaintiff was summarily dismissed by the defendant and they held same as a fact, he said further.
Magistrate Jallow indicated that it was settled law that the employer was not bound to give any reason for lawfully terminating the contract of the worker.
“Serious misconduct, habitual or substantial neglect of duties, lack of skills and misrepresentation are, under our laws, the grounds on which an employee can validly be dismissed summarily,” he told the tribunal.
However, he stated, the Labour Act in Section 89 requires that the employee be given a fair hearing even in valid cases of summary dismissal.
He said that in this case, the plaintiff was provided a form for her to supply a written explanation of her side of the allegation against her, which she did.
She was also invited to two meetings at the level of the general manager and the second was in the presence of her own chosen representative, Magistrate Jallow explained, adding that the plaintiff was allowed to respond and her witness also asked questions, following the allegation made by DW1 against the plaintiff which was corroborated by the narration of DW3.
“This, on the face of it, is fair hearing and we hold for a fact that the plaintiff was accorded fair hearing,” the magistrate said.
He further adduced that the allegation of theft made against the plaintiff by DW1 could not be substantiated based on DW1’s evidence alone, especially not only in the face of the plaintiff’s denial but also that DW1 and the plaintiff had some personal issues in the past.
However, he added, in considering the totality of the additional testimonies of DW3 and DW2, it would be difficult for one to brush aside the allegation as mere setup.
He said that DW3 particularly told the tribunal that he witnessed the plaintiff admitting to taking the items and the plaintiff gave no evidence to the tribunal that would make them disbelieve DW3.
“If it were not for the corroborative evidence of DW3 that he witnessed the admission of the plaintiff, the defendant could not have been heard to justify reasonableness,” Magistrate Jallow said.
He said further that they agreed with the defence counsel’s statement of her address that the requirement to act with justice and equity in dismissing an employee as provided in Section 90 (1) of the labour Act does impose on the employer a judicial standard of proof beyond reasonable doubts; rather with respect to guilty in proving gross misconduct, an employer is expected to act reasonably to the objective standard.
“Cognisant of all the above, the tribunal resolved that the defendant has discharged the burden of proving that it acted in good faith and for good cause and in compliance with laid down procedure in summarily dismissing the plaintiff for gross misconduct. As such, the dismissal was not wrongful,” he told the tribunal.
He further indicated that the issue of damages for breach of contract no longer arose and the tribunal would not delve into it.
Consequently, he said, the plaintiff could not legitimately claim more than what had been offered to her by the defendant as per defence exhibit 3.
How that figure was arrived at, he stated, was not in evidence but it was not in dispute that it was in excess of the plaintiff’s salary which she would normally have been entitled to since her employment with the defendant lasted more than six years.
“The tribunal therefore resolved and orders for the defendant to pay the plaintiff the sum of D7,352.88 being the amount it computed to be the plaintiff’s entitlement at the time of dismissal. Subject to the above, it is our view that the plaintiff’s claim has failed,” Magistrate Jallow declared.