Michael Bonnell v Project Management Services

• Jurisdiction: Belize
• Judge: Chabot, J.
• Judgment Date: 19 September 2023
• Docket Number: CLAIM No. CV 171 of 2022
• Court: Supreme Court (Belize)

BETWEEN:

Michael Bonnell

Claimant

and

Project Management Services

Defendant

CLAIM No. CV 171 of 2022

IN THE SENIOR COURTS OF BELIZE

IN THE HIGH COURT OF BELIZE

Appearances:

Orson J. Elrington, for the Claimant

Yogini Lochan-Cave, for the Defendant

Chabot, J.

1 The claimant, Michael Bonnell, was dismissed from his employment with the defendant, Project Management Services (“PMS”). Mr. Bonnell claims damages in an amount of $48,062.67, plus interest and costs, against PMS.

2 For the reasons outlined in this judgment, the claim is dismissed. PMS has met its burden of proving that Mr. Bonnell's dismissal for gross misconduct was justified.

Background

3 PMS is engaged in the business of the production and export of bananas from Belize. PMS ships its products out of Belize from the Big Creek Port (the “port”), which is controlled by Banana Enterprises Limited. At the time of his dismissal, Mr. Bonnell held the position of cold chain supervisor and earned $3,292.69 monthly. His duties included monitoring and supervising containers, and monitoring the placement of security seals on all banana containers.

4 According to PMS, container seals are a legal requirement of the Big Creek Port, customs, agriculture, and health authorities. The bill of lading and shipping documents include the container seal number for verification by port authorities, port customs, and the customer receiving the cargo. The usage of container seals is also a part of C-TPAT (Customs-Trade Partnership Against Terrorism) requirements. PMS states that if a container arrives at its destination with any change, damage, or evidence of any tampering, smuggling, or contraband, PMS and the port would suffer serious legal and financial consequences.

5 PMS alleges that Mr. Bonnell was dismissed on 28 ^th October 2019 for gross misconduct in the execution of his duties. According to PMS, on or around the 26 ^th or 27 ^th October 2019, Mr. Bonnell removed the seals from various containers in PMS's shipment at the port and placed them on other containers. PMS alleges that Mr. Bonnell's actions of tampering with the seals are directly related to his employment because Mr. Bonnell's duties included the monitoring and the placement of the seals. PMS also alleges that Mr. Bonnell's actions had a detrimental effect on PMS's business. PMS considers that Mr. Bonnell's behaviour constituted a repudiatory breach of his employment and a breach of the implied terms of trust and confidence necessary for an employer-employee relationship. These actions gave PMS good and sufficient cause to terminate Mr. Bonnell's employment, and allowed PMS to summarily dismiss Mr. Bonnell in accordance with section 43 of the Labour Act. 1 PMS argues that Mr. Bonnell is not entitled to the payment of any severance allowance, payment in lieu of notice, or terminal benefit.

6 Mr. Bonnell alleges that a coworker by the name of Juan Ardon informed him that he had improperly placed seals on containers. Mr. Bonnell undertook to correct the seals. Shortly thereafter, Mr. Bonnell

was dismissed from his employment. Mr. Bonnell alleges that he was denied natural justice as he was not given an opportunity to answer the allegations against him

7 The only issue raised by the parties in this matter is whether Mr. Bonnell is entitled to severance, vacation pay and payment in lieu of notice and, if the court so determines, in what sum. In resolving this issue, the court will consider whether Mr. Bonnell was dismissed in breach of his natural justice rights.

Analysis

8 As there was no written employment agreement between Mr. Bonnell and PMS, the Labour Act governed the parties' employment relationship. Pursuant to section 43 of the Labour Act, an employer is entitled to summarily dismiss an employee who engages in gross misconduct:

43.-(1) An employer is entitled to dismiss summarily without notice or without payment of any severance or redundancy allowance or terminal benefit, any worker who commits an act of gross misconduct.

(2) The gross misconduct referred to in sub-section (1), is restricted to that conduct which is directly related to the employment relationship and has a detrimental effect on the business and is based on the operational requirements of the enterprise of such a nature that it would be unreasonable to require the employer to continue the employment relationship.

9 “Gross misconduct” is defined in section 2 of the Labour Act as “misconduct that is such that the employer cannot reasonably be expected to take any course other than to terminate the employment of the worker”. The onus is on PMS to prove gross misconduct. 2

10 I find that PMS has met its burden of proving that Mr. Bonnell engaged in an act of gross misconduct within the meaning of the Labour Act. The uncontroverted evidence is that 28 seals were tampered with on or around 27 ^th October 2019. I am satisfied that it is Mr. Bonnell who tampered with the seals. In his witness statement, Mr. Bonnell admits that he changed the seals on some containers, but explains that he did so after Mr. Ardon had told him he had improperly placed seals on some containers and Mr. Bonnell took it upon himself to correct the seals. In written submissions, Mr. Bonnell reiterates that “while he did change seals it was in attempt to help not sabotage”. However, in cross-examination, Mr. Bonnell initially denied tampering or changing any seals on the containers. Pressed on the issue, he

eventually admitted to having been caught on port cameras changing the seals. Mr. Bonnell's evidence is contradictory. These contradictions, coupled with Mr. Bonnell's general evasiveness and lack of candour in cross-examination, put his credibility into question. I note that, while Mr. Bonnell mentions in his witness statement that one Jarett Garbutt overheard his conversation with Mr. Ardon, Mr. Garbutt was not called as a witness in these proceedings. I draw an adverse inference from that fact

11 Mr. Ardon was called by PMS as a witness in this matter. Mr. Ardon denied the conversation where he allegedly said to Mr. Bonnell he had improperly placed seals on some of the containers. According to Mr. Ardon, on 26 ^th October 2019 he went to work at around 6:30 a.m. to take temperature readings and place seals on containers. He left at around 9:30 a.m. When he went back to work the next day at 6:30 a.m., he noticed that some temperature sheets were missing and others were not as he had left them the previous day. When he went to take temperature readings, he saw Mr. Bonnell behind some containers writing in a book. Mr. Ardon asked Mr. Bonnell about the temperature sheets, but Mr. Bonnell raised his voice and denied having anything to do with the missing sheets. When he went to take temperature readings, Mr. Ardon noticed that the booking list in which the seals assigned to the containers were documented had been tampered with. Alarmed, Mr. Ardon went to check the seals on the containers. The first container he checked had a different seal than the one that had been assigned to it. After reporting the discrepancy to the port technician and the chief of port operations, Mr. Ardon continued checking seals and found more discrepancies. Vessel loading operations had to be stopped, and some of the containers that had been loaded on the vessel had to be offloaded to verify the seal numbers. Some had wrong seal numbers.

12 Mr. Bonnell's counsel centered his cross-examination of Mr. Ardon on the acrimonious relationship between Mr. Bonnell and Mr. Ardon. I will return to this later. For now, I note that Mr. Ardon denied counsel's suggestion that he lied to Mr. Bonnell by making him believe he needed assistance to fix the seals properly, and that he knew the cameras would catch Mr. Bonnell swapping seals. The implication is that Mr. Ardon wanted to get Mr. Bonnell into trouble.

13 Mr. Bonnell's narrative is not supported by the evidence. As mentioned, Mr. Bonnell's version of events is contradicted by Mr. Ardon's testimony, and Mr. Bonnell failed to call as a witness Mr. Garbutt who allegedly heard Mr. Ardon ask for assistance. In addition, PMS entered into evidence a video purportedly showing Mr. Bonnell changing seals on some containers. The video is short – 1:26. The video shows a number of containers sitting on a dock. There are empty pallets in the foreground. A man appears on the right side of the screen, walking towards one of the containers. The man looks around and removes something which I assume to be the seal from the front of the container. He walks over to the next container and does the same thing. In total, the man removes the seals from nine containers. Once the nine seals are removed, the man turns around and places the seals back on the nine containers. He does that quickly, without looking at any of the seals before placing them back on the containers. Given what I have heard about the importance of matching the right seal to the right container, I would have expected that if Mr. Bonnell had taken upon himself to fix the seals wrongly placed by Mr. Ardon, as he alleges he did, Mr. Bonnell would have taken care to at least look at the seal numbers and at the container numbers to ensure that they matched. He would likely have had some list with him to cross-check the information. The operation would have taken much...