Colando Hutchinson v Rezworth Burchenson

• Jurisdiction: Jamaica
• Judge: Laing, J
• Judgment Date: 23 December 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2020CD00519
• Date: 23 December 2020

[2020] JMCC Comm 37

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

COMMERCIAL DIVISION

CLAIM NO. SU2020CD00519

Between

Colando Hutchinson

Claimant

and

Rezworth Burchenson

1 ^st Defendant

and

Courtney Campbell

2 ^nd Defendant

and

Victoria Mutual Wealth Management Limited

3 ^rd Defendant

and

Victoria Mutual Building Society

4 ^th Defendant

Mr Conrad George and Mr Andre Sheckleford instructed by Hart Muirhead Fatta, Attorneys-at-Law for the Claimant

Ms Symone Mayhew QC instructed by Mayhew Law, Attorneys-at-Law for the 1 ^st – 4 ^th Defendants

Injunction — Principles to be applied — Whether special considerations apply when the practical effect of the injunction is to restrain disciplinary proceedings against an employee

IN CHAMBERS

Laing, J

The Claim

1 The Claimant, is the Deputy Chief Executive Officer of the 3 ^rd Defendant (“VMWM”), a position he has occupied since 1 ^st January 2019. He was first employed on 19 ^th July 2010. VMWM is a subsidiary of the 4 ^th Defendant (“VMBS”) Both companies are a part of a group of companies which will be referred to herein as (“the VM Group”). The 1 ^st Defendant is the Chief Executive Officer of WMWM, and the 2 ^nd Defendant is the President and Chief Executive Officer of VMBS.

2 The Claimant, has filed a Claim Form and Particulars of Claim on 16 ^th December 2020 and the Particulars of Claim was amended on 21 ^st December 2020 (“the Claim”). The Amended Particulars of Claim, seeks an injunction:

“.. restraining the 3rd Defendant whether by itself, through its agents or otherwise howsoever from taking or causing or permitting to be taken to be taken (sic) on its behalf any adverse steps against the Claimant in connection with employment by the 3rd Defendant, including terminating its contract of employment with the Claimant, for any reason connected with the purported charge letters from the 3rd and/or 4th Defendant dated 25th and 27th November 2020 (“the Purported Charge Letters”)”

3 The Claimant has also claimed damages against the Defendants together, or against various combinations of them, sometimes in the alternative, for breach of the express terms of his contract of employment, breach of the implied term of trust and confidence, conspiracy and invasion of privacy.

The background to the application

4 The Claimant received two letters, one dated 25 ^th November 2020 and the other dated 27 ^th November 2020, (together the “Charge Letters”). The letter dated 25 ^th November 2020 was signed by Laraine Harrison, Group Chief Human Resources Officer, and it raised allegations that the Claimant was in breach of the VM Group's Code of Business Ethics and Conduct Policy, clause 6.04 Conflict of Interest, the 2 ^nd and 3 ^rd paragraphs of which are in the following terms:

“Covered persons should where possible avoid personal activities or interest that conflict with their direct responsibilities to the VM Group. Covered persons must not seek gain for themselves or others through misuse of their positions. Circumstances that could give rise to a potential conflict of interest must be disclosed in writing to a manager”.

“Conflicts of interest may not always be clear cut, so if there is doubt, there should be consultation with the Senior Vice President, Vice President, Manager or if circumstances warrant, the Chief Financial Officer or Senior Vice President, Group Compliance, Legal Services and Corporate Secretary of the VM group. Any Covered Persons who become aware of a conflict or potential conflict should bring it to the attention of one of the afore-mentioned Officers”.

5 The 25 ^th November 2020 letter alleged that the conflict existed since February 2018 and was not declared in writing to any of the aforementioned officers as required. It was asserted that this breach constitutes a basis for disciplinary action. The Claimant was advised that he will be required to attend a disciplinary hearing on Wednesday 2 ^nd December 2020 at 10:00 a.m. or Thursday, 3 ^rd December 2020 at 10 a.m., based on his preferred date, in the large training room at VMBS, 73–75 Half Way Tree Road, Kingston 10, to answer allegations which were:

• a. failure to bring a potential conflict of interest to the attention of officers of VMBS;

• b. failing to report a matter which the claimant has a duty to make in any book or document;

• c. falsifying company documents/records or giving false information for the company's personnel files or reports.

(“the Conflict of Interest Allegations”).

6 The Claimant also received a letter dated 27 ^th November 2020 signed by Dayton Robinson, Assistant Vice President-Group Human Resources, referring to a harassment allegation against the Claimant, made to the President and CEO Mr Courtney Campbell (“the Harassment Allegations”). The 27 ^th November letter referenced a report prepared by an investigator. It was asserted that the alleged acts were in breach of the VM Group's Disciplinary Code and the VM Groups Code of Business Ethics and Conduct Policy. It quoted extracts from both documents and for purposes of this decision I will reproduce only clause 6.10 of VM Groups Code of Business Ethics and Conduct Policy as follows:

6.10 Prevention of Harassment on the Job

The VM Group is committed to providing a work environment totally free of harassment of any kind. The VM Group will not tolerate any harassment of its Covered Persons and will take steps to investigate and take the appropriate action in keeping with the Disciplinary Code.

Harassment can result from a broad range of actions, which might include, but are not limited to the following:

• • Offensive remarks.

• • Display of or sending to another, obscene or offensive materials.

• • Unwanted conduct of a sexual nature, or order conduct.

• • Affecting the dignity of women and men at the workplace.

Covered Persons are responsible for assisting in the prevention of harassment through the following:

• • Refraining from participation in or encouragement of actions that constitute harassment.

• • Reporting acts of harassment to their manager or encouraging Covered Person who confides in you to make a report to his manager.

Harassment may be subtle, manipulative and may not always fit into a legal definition. Harassment is often noted in power and may mask itself as flirtation, friendliness or even teasing.

Regardless of the actual relationship, the harasser, through his/her behaviour, often assumes a superior stance over the victim. The VM Group views the matter of harassment very seriously. All such matters will be immediately investigated and resolved in a thorough but private manner. Any Covered Person found to have engaged in harassing behaviour would be subject to action up to and including termination, in accordance with the Disciplinary Code.

The application

7 By Notice of Application filed on 16 ^th December 2020 (“the Application”), the Claimant has sought an order for:

“an injunction until trial or sooner order restraining the Third Defendant whether by itself, through its agents or otherwise howsoever from taking or causing or permitting to be taken to be taken (sic) on its behalf any adverse steps against the Claimant in connection with employment by the Third Defendant, including terminating its contract of employment with the Claimant, for any reason connected with the purported charge letters from the Third and or/or Fourth Defendant dated 25 ^th and 27 ^th November 2020 (“the Purported Charge Letters”)”.

8 Some of the grounds on which the Claimant is seeking this order are as follows:

• (i) There are serious issues to be tried in that:

  • (a) there is a breach of express contractual terms which form a part of the contract between the Third Defendant and the Claimant, in that the Third Defendant is embarking on disciplinary procedures in contravention of the Third Defendants disciplinary handbook (“the Disciplinary Policy”) which forms a part of his contract of employment;

  • (b) the Third and Fourth Defendants are acting contrary to the implied contractual duty of mutual trust and confidence, and therefore in breach of the Claimant's contractual rights in that:

    • i. untenable, vague and imprecise charges have been laid against the Claimant by the Third and Fourth Defendants;

    • ii. the have been ignored with respect to the Claimant and the relevant disciplinary procedures contained in the Disciplinary Policy purported charges contained in the Purported Charge Letters;

    • iii. the Third and Fourth Defendants, through its officers have urged the Claimant to resign from his post in light of the purported charges against him.

  • (c) The First, Second and Fourth Defendants have been and are conspiring to prejudice the Claimant in his contract of employment and have procured breaches of contract by the Third Defendant;

  • (d) they Defendants have been and are conspiring to cause injury to the Claimant and have caused injury to the Claimant;

9 In his affidavit sworn on 16 ^th December 2020, the Claimant avers that the Conflict of Interest Allegations arise from the existence of a personal relationship since February 2018 between Ms L, an employee in the sales unit of VMWM and himself.

10 The Claimant averred that on 22 ^nd October 2020 he had a brief discussion with the 1 ^st Defendant in relation to the pregnancy of Ms. L. He further averred that on 30 ^th October 2020 the 2 ^nd Defendant asked him to meet at his office and at that meeting the 2 ^nd Defendant indicated, inter alia, that he had received a complaint in respect of the Claimant's conduct and an investigation had been commissioned which was incomplete. The Claimant stated that he was advised that matters concerning Ms. L were in the report. However, the Claimant stated that he was not told of the nature or the specifics of the complaints against him which formed a part of the report, save that there was a sexual harassment complaint and it concerned...