The Industrial Court has dismissed an unfair dismissal claim filed by a former bag carrier at Epicurean Fine Foods and Pharmacy, ruling that her summary termination in January 2015 was lawful under the Antigua and Barbuda Labour Code.

The court ruled on May 22 that Narshebar Richards was lawfully dismissed by Epicurean on the grounds of dishonest misuse of the Staff Loyalty Card Programme.

Richards had been employed as a bag carrier and packer from July 29, 2010; however she was summarily dismissed on January 13, following an investigation that identified unusual activity on her loyalty card account.

In December 2011, Epicurean circulated a general notification to its employees about the misuse of the staff loyalty cards where customers allowing staff, particularly cashiers and bag handlers to accumulate points from their transactions.

Employees were informed and made to sign and acknowledge that this practice was fraudulent and would result in disciplinary action.
Epicurean’s Cost Controller, Eustace Ceasar, identified unusual activity on Richards’ loyalty card account in January 2015 where a review of transaction records showed that between December 10, 2014 and January 7, 2015, points worth EC$47.38 had been credited to her card on four occasions when she was not personally shopping, the only way points could be legitimately earned under the programme’s Terms and Conditions.

When called to a meeting on January 9, 2015, Richards admitted that on at least one occasion a customer of Spanish appearance had offered her his loyalty points as an alternative tip because he had no change, and that she had the cashier apply those points to her card.

She denied the other three occurrences but on January 13, citing a loss of trust and confidence in her ability to carry out her duties with integrity, Epicurean dismissed her with a letter bearing a “Without Prejudice” endorsement at its head.

Before the court, Richards raised five grounds in support of her claim, including that the dismissal letter’s “Without Prejudice” endorsement rendered it inadmissible, that the investigative process was flawed because she was never shown the video footage relied upon, that the customer’s voluntary offer of his points negated any dishonesty, that the EC$47.38 value made summary dismissal disproportionate, and that the inconsistent treatment of cashiers involved in the same transactions undermined the reasonableness of the dismissal.

The Court rejected each ground, noting on the admissibility question, that the “Without Prejudice” endorsement carried no legal effect on a document that functioned plainly as a dismissal letter communicating an effective date of termination.

On the video evidence, the court acknowledged a real procedural deficiency, drawing an adverse inference from the employer’s failure to produce the footage for the three disputed incidents.

However, the Court found that the single admitted incident, standing independently, was sufficient to sustain the dismissal.

The Court noted that Richards had signed both the Terms and Conditions in April 2011 and the December 2011 circular expressly warning staff that using loyalty cards in connection with customer transactions was fraudulent conduct for which dismissal would follow.

The Court rejected the argument that the customer’s offer absolved Richards of dishonesty, finding that a customer had no authority to waive or modify the terms of an employment contract to which he was not a party.

“The customer’s generosity cannot create a permission that the Employee’s contract with her Employer did not contain,” the judgment stated.

On proportionality, the court did not focus on the EC$47.38 figure but the question of whether the conduct was so serious that the employer could not reasonably be expected to take any other course.

The court felt that Richards had acted deliberately, in direct defiance of a written warning she had signed and advanced a defence at the disciplinary stage that her own evidence then contradicted.

On inconsistency of treatment, the court found Richards and the cashiers were not in the same position.

Richards was the cardholder who directly benefited from the misuse while the cashiers were facilitators who received no personal benefit.

The court also noted that the cashiers’ conduct required its own separate disciplinary assessment and was not before the court.

The court found the Epicurean had genuinely believed Richards was guilty of misconduct on reasonable grounds, had conducted a reasonable investigation, and had acted reasonably in all the circumstances under the Labour Code