Court Management Services v Scott-crossley

• Jurisdiction: Jamaica
• Judge: Hunter, C.
• Judgment Date: 25 June 2015
• Court: Industrial Dispute Tribunal (Jamaica)
• Docket Number: IDT 39/2014
• Date: 25 June 2015

Industrial Disputes Tribunal

Hunter, C.; Graham, M.; Lewis, M.

IDT 39/2014

Court Management Services

and

Scott-crossley

Employment Law - Industrial dispute — Termination of employment — Dismissal — Whether worker dismissed by proper authority — Whether dismissal consistent with fair labour practices — Dismissal found to be unjustifiable — Compensation awarded.

Hunter, C.

REFERENCE:

1 By letter dated October 30, 2014, the Honourable Minister of Labour and Social Security in accordance with Section 11A(1)(a)(i) of the Labour Relations and Industrial Disputes Act (hereinafter called “the Act”), referred to the Industrial Disputes Tribunal for settlement, in accordance with the following Terms of Reference, the industrial dispute described therein:–

2 The Terms of Reference were as follows:

“To determine and settle the dispute between Mrs. Jacqueline Scott-Crossley on the one hand and Court Management Services on the other hand over the termination of her contract of employment.”

DIVISION:

3 The Division of the Tribunal which was selected in accordance with Section 8(2)(c) of the Act and which dealt with the matter comprised:

Mr. Donovan Hunter — Chairman

Mr. Trevor Graham, J.P. — Member, Section 8(2)(c)(ii)

Mr. Clinton Lewis — Member, Section 8(2)(c)(iii)

REPRESENTATIVES OF THE PARTIES:

4 The Company was represented by:

Miss Althea Jarrett — Attorney-at-Law

Miss Catherine Williams — Attorney-at-Law

Mrs. Carol Hughes — Principal Executive Officer (PEO)

5 The dismissed worker, Mrs. Jacqueline Scott-Crossley was represented by:

Mrs. Karene Stanley Jones — Attorney-at-Law

In attendance:

Mrs. Jacqueline Scott-Crossley — the Dismissed Worker

SUBMISSIONS AND SITTINGS:

6 Briefs were submitted by both parties who made oral submissions during eleven sittings held between December 19, 2014 and May 19, 2015.

BACKGORUND

7 Courts Management Services hereafter referred to as CMS is a department of the Ministry of Justice established in 2010 by the Government of Jamaica (GOJ) to provide administrative services to the judiciary and the courts, thereby separating the administrative functions of the judicial and executive arms of Government. The Chief Justice of Jamaica is the head of the judiciary and has overall responsibility for all the courts in Jamaica. CMS is headed by the Principal Executive Officer (PEO) who is answerable to Parliament and pursuant to the provisions of the Financial Administration and Audit Act (the Act), is charged with the responsibility of accounting for expenditure on any service in CMS, in respect of which monies have been appropriated under the Act of any other enactment. The intent of CMS is to facilitate a more efficient court system, an independent court system, judiciary and ultimately an improved justice system.

8 By letter dated February 18, 2013 Mrs. Jacqueline Scott-Crossley was appointed Special Projects Director by way of a fix contract for two (2) years with approval from the Ministry of Finance. The post is not an established post under the Established (General) Order 2012. Hence, the terms of the contract are in keeping with the Ministry's guidelines for fix term contract officers.

9 In September 2013, Mrs. Carol Hughes was appointed to the post of Acting PEO for CMS. Having taken over the responsibilities of the PEO, Mrs. Deborah Gardner found that Mrs. Crossley was operating outside the scope of her terms of reference and was subsequently given a letter of termination dated October 17, 2013.

10 Mrs. Crossley protested her dismissal and employed an attorney to represent her in the pursuit of justice. Please see below letter of termination.

“October 17, 2013

Mrs. Jacqueline Scott-Crossley c/o Court Management Services

25 Dominica Drive

Kingston 5

Dear Mrs. Scott-Crossley,

Kindly refer to Clause 6 (a) of your contract as Special Projects Director with Court Management Services which gives the Principal Executive Officer the authority to terminate your services with a month's notice or pay in lieu of notice.

This serves to inform you that your contract will be terminated with effect from October 31, 2013. I understand from you that you will proceed on vacation leave as of Friday, October 18, 2013. When you leave this afternoon you will not be required to return to the office. You will be paid your salary and allowances for the month of October, 2013 and paid another month's salary in lieu of notice.

Please hand the office keys, door pass, equipment, telephone and any other property of CMS over to Ms Sydian Brissett this afternoon.

Thank you for the work you have done while at Court Management Services and every good wish for the future.

Yours sincerely,

Carol Hughes (Mrs.)

Principal Executive Officer (Acting)

c.c. Ms. Michelle Muir

Senior Director, Human Resource Management & Administration

Mr. Lascelles Ellis

Principal Financial Officer

COURT MANAGEMENT SERVICES' CASE

11 On November 9, 2011, Mrs. Jacqueline Scott-Crossley and the Government of Jamaica through the CMS established a contract to provide services as a Management Consultant to CMS for a term of twelve (12) months. The PEO was Mrs. Deborah Gardner.

12 By letter dated December 7, 2012 to the Chief Personnel Officer in the Office of the Services Commission (OSC), Mrs. Deborah Gardner requested approval for the temporary employment of Mrs. Jacqueline Scott-Crossley, as Director, Procurement and Administration, an established post under the Civil Service Established (General) Order 2012 for the period of four (4) months with effect from December 12, 2012. The letter pointed out that Mrs. Crossley was a suitable candidate for the post as she is aware of the operations of the CMS and has displayed strong managerial skills in the performance of her duties. The scope of Mrs. Crossley's responsibilities would be as follows:

• a) To establish a process for the inventorisation of assets and goods for CMS and the Courts.

• b) To manage and co-ordinate the process for establishing and updating an efficient asset and inventory system in the CMS, for the Court of Appeal, Supreme Court, Resident Magistrates Court and Family Court.

• c) To advise on and support the Principal Finance' Officer in resolving financial issues, ensuring efficiency in operations.

13 By letter dated December 13, 2012 Dr. Lois Parkes the Chief Personnel Officer in the Office of the Services Commissions (OSC) informed Mrs. Gardner that her request for approval to appoint Mrs. Crossley, temporarily as Director of Procurement and Administration was declined. However, inspite of the OSC denial of Mrs. Crossley to the post, Mrs. Gardner allowed her to perform the functions of same.

14 By the letter dated February 7, 2013 to the Deputy Financial Secretary in the Ministry of Finance Mrs. Gardner requested the approval of the appointment on contract of Mrs. Crossley to perform technical administrative services.

15 Mrs. Crossley was appointed on a two (2) years contract as Special Projects Director. The contract contained a termination clause which so far as is relevant reads:

• a) “The PEO on behalf of the Government may, at any time terminate your employment by giving you one (1) month's notice.

• b) You may at anytime terminate this engagement by giving one (1) month's notice in writing.”

16 Mrs. Carol Hughes upon her appointment as Acting PEO in September 2013 found out that Mrs. Crossley was performing functions outside the scope of her terms of reference. Specifically, she found Mrs. Crossley to be performing functions related to procurement which fell under the post of Director Procurement and Administration, a post Mrs. Crossley was found unsuitable to perform by the OSC. Mrs. Crossley was also performing other functions that were the remit of other divisions. These include Human Resource Management and Administration, the Legal Unit, the Finance and Accounts Division and the Strategic Policy and Planning Division all of which had the appropriate personnel to carry out the required task. This arrangement was clearly unnecessary and costly due to the duplication of tasks.

17 The PEO, as the Accounting Officer for CMS and is aware of her duties under the Financial Administration and Audit Act is fiscally responsible for the use of public funds, decided in the circumstances that it was in the best interest of the CMS and the Government that the contract of Mrs. Crossley be terminated pursuant to the termination clause of her contract. The Acting PEO met with Mrs. Crossley on October 17, 2013 and informed her of the basis on which her determination had been made to terminate her services. Mrs. Crossley was therefore informed by the PEO that her services were being terminated in accordance with the termination clause of her contract.

COURTS MANAGEMENT SERVICES' CONTENTION

• a) CMS contends that Mrs. Crossley contract was lawfully terminated and her dismissal was not unjustifiable. CMS acknowledges that Mrs. Crossley is entitled to her prorated gratuity.

• b) The Acting PEO was entitled to determine, as she did on October 17, 2013, that the job of Special Projects Director was superfluous and unnecessary. She so determined and advised Mrs. Crossley and fully informed her of the basis on which her termination was made. Mrs. Crossley was not terminated for cause and her work performance was generally good.

COURTS MANAGEMENT SERVICES' CONTENTION

THE DISSMISSED WORKER'S CASE:

18 By contract dated February 21, 2013, Mrs. Jacqueline. Scott-Crossley was engaged by Court Management Services as Special Projects Director on a fixed term contract basis for two (2) years commencing on the 25th day of February 2013.

19 In September 2013, Acting PEO, Mrs. Carol Hughes, Attorney-at-Law assumed duties while the PEO, Mrs. Deborah Gardner proceeded on study leave.

20 Mrs. Crossley contends that from as early as September 17, 2013 she had been seeking to meet with her new...