You’re wrong

supremecourtsbarbadosA local commercial bank will have to pay for its “constructive dismissal” of a long-standing employees after she complained about harassment on the job and resigned. Former District Relationship Officer with the Bank of Nova Scotia, Margaret Wharton, has been awarded $65,640 in damages by the Barbados High Court more than eight years after she sued the financial institution.

And based on the decision she will actually receive more than that amount since the award will have six per cent interest calculated from March 4, 2005, when she filed her Writ of Summons “until payment”, in addition to costs for her two lawyers.

Wharton had sought $81,875 in damages for constructive dismissal, general damages for mental, psychological and physical injury; interest and costs.

She was represented by Vernon Smith, Q.C. and Lisa Greaves of Smith & Smith, while Scotia Bank was represented by Alicia Richards-Hill of Yearwood And Boyce.

In her decision, Madam Justice Kaye Goodridge’s decision found that Wharton, who at the time of parting company with Scotia worked at the bank for more than 27 years, was in fact constructively dismissed.

Wharton had claimed that she was harassed by two male superiors after her promotion in 2004, including “several” threats to pull her jacket zipper down, repeated use of “offensive language” in the presence of others, and accusations of “being a thief”.

The former banker’s case was based on the premise that because of this harassment she was forced to give up her employment at Scotia Bank, and was therefore constructively dismissed, deprived of her salary and emoluments and consequently suffered loss and damage.

But court documents said Scotia Bank denied having dismissed Wharton, contending that she voluntarily withdrew herself from employment, and did not admit to any alleged mental, psychological and physical injury, loss or damage, as well as to the amounts she was claiming.

The High Court jurist decided, however, that Wharton, who was a Scotia Bank employment from December 9, 1976 to October 2004, was constructively dismissed, even if there was evidence that she was leaving the bank for another job in the insurance industry.

“The fact that an employee has another job to go to may not prevent a finding of constructive dismissal if the employer’s conduct was the main operative cause of the resignation… The employer’s conduct must be a significant breach going to the root of the contract of employment and the employee’s resignation must be in response to that breach,” the judge stated.

“The plaintiff was 53 years old at the time, with retirement some way in the future. She held a junior management position. The evidence … that it was unusual for an employee with the years of experience of the plaintiff to resign only serves to show that the plaintiff made every effort in the face of abuse to stay the course.

“The fact that she could take it no longer and sought other employment is just a manifestation of the effect upon her of the abuse she suffered… In my opinion, the conduct … together amount to a fundamental breach of the plaintiff’s contract of employment, sufficient to force her to resign.

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