By NEIL HARTNELL
Tribune Business Editor
Failing to record a bad “dolphin encounter”, and then trying to cover it up, cost an Atlantis middle manager his job - with the resort’s decision backed by two Bahamian courts.
The Court of Appeal, in a unanimous verdict this week, rejected Eden Butler’s attempt to overturn an earlier rejection of his unfair/wrongful dismissal claim on the basis that it saw no reason to interfere with the Supreme Court’s finding that the episode represented “a fundamental breach” of his employment contract.
Acting justice Milton Evans, in a written ruling, noted that the dispute stemmed from Mr Butler’s failure to follow established Atlantis procedures and record any “behavioural incidents” involving the resort’s dolphins and their interaction with guests.
Mr Butler was director of pool one at Atlantis’s Dolphin Cay, part of the resort’s marine park, when a baby dolphin called Paulo injured a female guest on August 20, 2012. His superior, Teri Corbett, vice-president of marine mammal operations, was unaware this occurred until she was contacted by Atlantis’s insurance claims department on January 7, 2013, over four months later.
“As a result of the inquiry by the Insurers, Ms Corbett commenced an investigation which disclosed that a young dolphin, Paulo, had injured a guest, but no Behavioural Occurrence Log (BOL) was in the shared database concerning the incident. She was also able to ascertain that no hard copy of the BOL was in any of the folders that were utilized prior to the introduction of the new procedure.”
Dolphin behaviour incidents were supposed to be recorded in the BOLs. On September 16, 2012, the procedure for dealing with them abandoned the need to complete a written form and switched to just entering the reports in a shared electronic database.
“On January 11, 2013, after first causing the removal of all the BOLs from the folders and transferring the electronic filings to a secure data base, Ms Corbett confronted the appellant [Mr Butler] and inquired whether he knew of the incident and why a BOL could not be found,” the Court of Appeal ruling said.
“As the appellant was unable to produce a BOL, Ms Corbett issued to him a written warning for failure to carry out a control procedure. She also instructed him to give a written warning to Shikera Isaacs, who was the marine mammal specialist on duty at the time of the incident.”
Mr Butler later met Ms Corbett the same day to report that the relevant BPL had been misfiled in the log for Paulo’s mother, and had now been found. He also showed the electronic version to her on the computer.
“Ms Corbett became suspicious as she doubted that this could be the case, as she had made a thorough check of the electronic logs and had also had all of the 2012 hard copy BOLs removed from the binders,” the Court of Appeal found.
“As a result, on January 12, 2013, the appellant was suspended for four days pending investigation. After the appellant’s suspension, Ms Corbett found a hard copy of the BOL in [the mother’s] binder which was signed by the appellant and dated August 21, 2012.
“Ms Corbett subsequently had [Atlantis] IT personnel interrogate the system, and they confirmed, as she had suspected, that the BOL had been created at 2:51 pm on 11 January, 2013, and modified at 3.09 pm.”
Mr Butler was dismissed for “gross misconduct/misrepresentations” some three days later, having “falsified records” such that Atlantis had lost trust in his ability to faithfully execute his duties. He, though, initiated a legal action for wrongful dismissal, alleging he had been terminated without cause and a full, independent investigation.
The Court of Appeal, though, backed the findings of Supreme Court justice Deborah Fraser, who preferred the evidence of Atlantis and its witnesses. She found that Bernard Collie, one of Mr Butler’s witnesses, had confirmed the latter asked him to create the electronic BOL on January 11, 2013 - four-and-a-half months after the incident with the guest happened.
“This evidence... is sufficient to have raised reasonable suspicion by the employer of misrepresentation and dishonesty on the part of the plaintiff. That single act by the plaintiff is sufficient to erode the confidence and trust which the employer placed in him, and amounts to a fundamental breach of the employment contract,” Justice Fraser found.
“On advising Teri Corbett that he had located the document, a further investigation was conducted to confirm this. The results of that investigation would have been sufficient for the employer to have lost confidence in the leadership of the plaintiff. Prior to termination the plaintiff was granted a hearing and the opportunity of a review process. I am satisfied that the termination of the plaintiff’s employment was fair in the circumstances.”