The Industrial Court has dismissed an unfair dismissal claim brought by a former bag carrier at Epicurean Fine Foods and Pharmacy, upholding her summary termination in January 2015 as lawful under the Antigua and Barbuda Labour Code.
According to Antigua.news, the court ruled on May 22 that Narshebar Richards was lawfully dismissed by Epicurean on grounds of dishonest misuse of the company's Staff Loyalty Card Programme.
Richards had been employed as a bag carrier and packer since July 29, 2010. She was summarily dismissed on January 13, 2015, following an internal investigation that identified unusual activity on her loyalty card account.
In December 2011, Epicurean had circulated a written notice to all employees warning against misuse of staff loyalty cards — specifically, the practice of accumulating points from customer transactions. Employees were required to sign and acknowledge that such conduct was fraudulent and would result in disciplinary action.
Epicurean's Cost Controller, Eustace Ceasar, flagged Richards' account in January 2015. A review of transaction records revealed that between December 10, 2014, and January 7, 2015, points worth EC$47.38 had been credited to her card on four separate occasions when she was not personally shopping — the only means by which points could be legitimately earned under the programme's Terms and Conditions.
At a disciplinary 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 to a cash tip, and that she had instructed the cashier to apply those points to her card. She denied involvement in the three remaining transactions. On January 13, Epicurean dismissed her, citing a loss of trust and confidence in her integrity. The dismissal letter carried a "Without Prejudice" endorsement.
Before the court, Richards advanced five grounds in support of her claim. She argued that the "Without Prejudice" endorsement rendered the dismissal letter inadmissible; that the investigation was flawed because she was never shown the video footage used against her; that the customer's voluntary offer of points negated any dishonesty on her part; 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 her dismissal.
The court rejected each ground. On the admissibility question, it found that the "Without Prejudice" endorsement had no legal effect on a document that functioned plainly as a termination letter communicating an effective date of dismissal.
Regarding the video evidence, the court acknowledged a genuine procedural deficiency and drew an adverse inference from Epicurean's failure to produce footage for the three disputed incidents. Nevertheless, it found that the single admitted incident alone was sufficient to sustain the dismissal.
The court noted that Richards had signed both the programme's Terms and Conditions in April 2011 and the December 2011 circular explicitly warning that using loyalty cards in connection with customer transactions constituted fraudulent conduct warranting dismissal.
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 the question of proportionality, the court declined to focus on the EC$47.38 figure, directing its analysis instead at whether the conduct was sufficiently serious that the employer could not reasonably have been expected to take any other course. It found that Richards had acted deliberately, in direct defiance of a written warning she had signed, and had advanced a defence at the disciplinary stage that her own evidence subsequently contradicted.
On the inconsistency argument, the court found that Richards and the cashiers were not in equivalent positions. Richards was the cardholder who directly benefited from the misuse, while the cashiers were facilitators who received no personal gain. The court further noted that the cashiers' conduct warranted its own separate disciplinary assessment and was not a matter before the court.
The court concluded that 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 as required under the Labour Code.
