Marilyn Hamilton v United General Insurance Company Ltd

• Jurisdiction: Jamaica
• Judge: Sinclair-Haynes J
• Judgment Date: 13 December 2013
• Neutral Citation: [2013] JMCC Comm 18
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO 2011CD00088
• Date: 13 December 2013

[2013] JMCC Comm. 18

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO 2011CD00088

Between

Marilyn Hamilton

Claimant

and

United General Insurance Company Ltd.

Defendant

Mr. Paul Beswick , Mr. Kayode Smith and Miss Carissa Bryan instructed by Ballantyne and Beswick for the claimant

Lord Anthony Gifford QC, Conrad George and Adam Jones instructed by Hart Muirhead Fatta for the defendant

Employment Law — Whether claimant introduced pirated software into defendant's environment — Whether the claimant was wrongfully dismissed — Whether Addis v Gramophone precludes award for breach of trust and confidence — Loss of advantage on labour market-stigmatization — Claim for anxiety and depression — Whether failure to mitigate reasonable — What constitutes reasonable notice to terminate — Entitlement under pension scheme — Whether employee entitled to employer's contribution upon termination of contract — Defamation

Sinclair-Haynes J

1 The trial of this matter has spanned one year and eight months as a consequence of the unfortunate illness of counsel for both sides. I am however grateful to counsel for their thorough submissions.

2 The services of Marilyn Hamilton (claimant) as the Information and Technology Systems Manager for Advantage General Insurance Limited (defendant) were unceremoniously terminated on the 28 July, 2006. She was accused of introducing pirated software into its environment, which endangered the organization's reputation. Ms. Hamilton has sued the defendant for breach of contract. She claims that the manner and circumstances of her dismissal were in breach of the implied term of trust and confidence in her agreement for employment. She is also seeking damages for financial loss she suffered as result of the defendant's breach which:

She further seeks payment of the defendant's pension contributions and loss suffered as result of the wrongful termination of her employment.

• (a) caused her to suffer depression and anxiety;

• (b) affected her future employment prospects; and

• (c) defamed her character.

3 This claim is met with trenchant resistance from the defendant. The defendant denies that the termination of the claimant's employment was wrongful and asserts that she committed repudiatory breaches by introducing unauthorized software into its computer system, which caused its system to cease functioning and exposed it to liability to the owners of the intellectual property rights in the software. It was therefore entitled to accept her repudiatory breach of contract and discharge her. It further asserts that although it was entitled to dismiss her summarily, she was paid a sum which was equivalent to her net emoluments in lieu of notice.

Was her dismissal wrongful?

4 The basis for the claimant's dismissal was that she introduced pirated software into the defendant's environment. At paragraph 5 of her Further Amended Particulars: she claims:

“On or about 28th July, 2006, the Defendant through its managing director, Andrea Gordon-Martin wrote to the Claimant, wrongfully and without reasonable cause or legal footing, terminating the employment of the Claimant. The said letter stated inter alia

‘It has been brought to our attention that you have knowingly put the organization at risk by introducing pirated software into the environment. These actions are out of keeping with your responsibilities as the Information Technology Manager to protect the company against reputational and fiscal risk. As a consequence, we will be terminating your services with immediate effect.’

The claimant will at the trial hereof refer to the said letter of termination for its full terms and effects.”

5 At pagragraph 6 she further claims that:

“At no time has she ever been a party to or directed or authorised the introduction of pirated software into the defendant's organization. The claimant, during her tenure at the defendant's company, repeatedly reported instances discovered by her of operation by the claimant of inadequately licensed software and consistently requested the necessary licence upgrades for the software operated by the defendant. The defendant's letter of termination has provided no information as to which software the claimant has knowingly introduced to the defendant's organization, and the claimant will say that the defendant's failure to stipulate and specify the software allegedly introduced is because there was in fact no incident where the Claimant knowingly introduced pirated software into the Defendat's organization.”

6 Paragraph 6 of the defendant's amended defence reads:

“ As to paragraph — , the defendant will say that the claimant committed repudiatory breaches of her contract of employment by introducing into the defendant's computer system unauthorized software, thereby causing the defendant's computer system to cease functioning, giving rise to potential liability on the part of the defendant to those having intellectual property rights in such software. By so doing, the claimant acted in breach of her implied duties of good faith, fidelity and competence to the defendant; entitling the defendant to accept her repudiatory breach of contract, and so treat her contract of employment as being discharged.”

7 What is the evidence supporting these allegations? The defendant must satisy the court on a balance of probabilities that:

• a) pirated software was introduced; and

• b) Ms. Hamilton was responsible for its introduction

8 Can the defendant satisfy the court to the required standard that the claimant introduced the two pirated software it alleges she has? That is the critical issue. Mr. Andre Latty testified on behalf of the defendant. Under cross-examination, he admitted that he had no personal knowledge of pirated software being introduced into the defendant's environment by Ms. Hamilton. Any information he had was from a perusal of the file which was compiled prior to his employment with the company and correspondence from Ms. Bolt. On what then are they relying?

9 The day before the claimant's dismissal, a management meeting was held. Certain shortcomings in the defendant's system were highlighted. It is necessary to quote the relevant portions of the minutes of that meeting. Item 8 of the minutes contains the pertinent portions. It states as follows:

REPORTS

Information Systems-Miss Kristine Bolt and Mr. Roland Crawford

“Mr. Crawford began by indicating that the achievements of department to date were

(a)...

(b) the resources of exchange server that was being shared with U.G.I. group has been split and we now have a new domain for ourselves U.G.I.C Ja.”

Mr. Crawford continued that the licence for the exchange server we were using ran out, as same was a “test licence; and with the creation of the new domain proper licensing arrangements are now in place. All branches have been converted to the new U.G.I. CJa domain, a task that was accomplished in 6 days. With the conversion, all branches can now send and receive e-mail; however, the restoration of e-mail from the old server has not yet been done. Miss Bolt added that the licences we will now use would come under AIC portfolio, as they have a contract directly with Microsoft.”

Mr. Crawford indicated that during the conversion process some challenges were met regarding ‘permission’ for some of the softwares we have been using. Mrs. Gordon-Martin asked about documentation for such software and Mr. Crawford responded that documentation was scarce and that we are now in the process of creating a recovery path for the system. He also mentioned that with all the branches now ‘migrated’ to the new domain, we will have to ‘tie up’ the issue of ‘permissions and security’.

Mrs. Gordon-Martin asked if with the domain change e-mail addresses have also been changed and Miss Bolt informed yes they have been changed and that she will be sending an e-mail tomorrow Friday 28/7) informing of this. She further indicated that Users will still be able to receive mail sent to them at the old address and Senders will get a reply message informing of the change in the e-mail address. This procedure will remain in place for one year .

Mr. Crawford informed that it was found that there were no ‘governance standards’ as to the User names on the system. He indicated that clear standards have now been established where middle initial of users will be used to allow for better identification and a ‘clean up’ of the names that are already on the system has also been done; an e-mail on this issue is to be sent tomorrow (Friday 28/7). Mrs. Hamilton objected and voiced that we have always had established ‘governance standards’ regarding User names, where it was agreed that the second letter of a user's first name will be used (rather than middle initial) as most persons would easier know the spelling of a person's first name rather than their middle name. Miss Bolt indicated that some of the responsibilities of updating user profiles have been passed to the Human Resources and Administration Department, and that as part of the standards being established a form will be created to be used to provide information for updating User profile(s) .

The new U.G.I. CJa intra-net will be launched in the coming week; and Miss Bolt asked Manager to send her copies of frequently used forms that need to be placed on the site. Miss Bolt also advised that a disaster recovery plan for the organization is also to be worked on.”

The claimant's case

10 The claimant asserts that her dismissal was wrongful and without reasonable cause. It is her evidence that she neither directed nor authorized the introduction of pirated software nor was she party to its introduction. She was vigilant in reporting instances of inadequately licensed software and regularly requested the licence upgrades necessary for software which the defendant...