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Worker wins wrongful dismissal case

Supreme Court

A man fired for repeated lateness has won a wrongful dismissal suit, but the Supreme Court rejected allegations that he was discriminated against for being Bermudian.

Curtis Richardson launched legal action against Air Care Limited last year for both wrongful dismissal and unlawful discrimination after being fired from the company for “continued lateness” during the construction of the new hospital wing.

According to a Supreme Court judgment dated January 14, the court had heard that Air Care was subcontracted in October 2012 to install a building automation system in the new building. The company hired three Bermudians — including Mr Richardson — who lacked experience in the area with the goal of training them on the job.

While the company told the court that work was to begin on the site at 7.30am, Mr Richardson’s letter of employment stated his working hours would be between 8am and 4pm at the Air Care office. The court heard that during a three-month probationary period Mr Richardson consistently arrived at the site by 7.30am, although he later began to complain it was difficult for him due to a lack of transportation.

In July of 2013, after receiving complaints of tardiness, Air Care staff including Mr Richardson were sent an e-mail warning them that the start time at the site was 7.30am and that their swipe card logs would be checked on a weekly basis. A meeting was subsequently held in which staff were told that if they were to arrive after 7.30am, they would not be allowed to start work until 8am and would not be billed for that half-hour of work.

The following day, Mr Richardson swiped in two minutes late, and was told to sit out until 8am. He left the site to complain about the loss of pay to the company’s general manager, but when he returned he was given two written warnings. While both warnings were dated July 18, 2013, the first related to arriving late between June 24 and 28 and the second to lateness on July second, third and fourth.

At that time Mr Richardson argued in a letter that he would begin work before swiping his card, meaning the swipe card record did not reflect his arrival at the site.

The court heard he arrived at work before 7.30am for the rest of July, but was late on nine occasions in August and six occasions in September.

His manager claimed he subsequently met with Mr Richardson to warn him that he would be dismissed if he were to arrive late again, but Mr Richardson denied that meeting ever took place.

The plaintiff arrived on time the three working days after the alleged meeting, but swiped in late between September 25 and 27.

A third written warning was prepared, but it was never given to Mr Richardson as he was dismissed on September 30 for again arriving late.

Mr Richardson subsequently launched a legal action against the company, arguing that he was wrongfully dismissed as his letter of employment said work hours began at 8am. He also alleged he was discriminated against because he was Bermudian, claiming he was fired to make room for two Canadians. The guest workers both began work between July 15 and August 15, and resigned in late September and early October.

In the written judgment, Puisne Judge Stephen Hellman dismissed the claim of discrimination, noting that Mr Richardson himself admitted that there was enough work for all three employees and that the Canadian hired as an electrical foreman had more experience than him.

Mr Justice Hellman found that despite his letter of employment, Mr Richardson’s start time was 7.30am, noting that he had consistently arrived by that time during his probationary period and he didn’t state in writing the start time was 8am until October 2, 2013. However, the judge also found that the company had been wrong to issue two written warnings on the same date, arguing that a warning must state that there should be an improvement in a set time. As a result, he found that Mr Richardson was never given a second warning in breach of his employment contract.

Mr Justice Hellman wrote: “The plaintiff succeeds on his claim for wrongful dismissal. Not because the defendant did not have cause to dismiss him, but because the defendant did not follow the contractual procedure for doing so.

“I award him damages equal to his pay for three months and two weeks, together with interest at the statutory rate. His claim that he was unlawfully discriminated against is dismissed.”

The full judgement is available online at the judiciary website.