National Commercial Bank Jamaica Ltd v Industrial Disputes Tribunal and Another

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 06 May 2016
• Neutral Citation: JM 2016 CA 41
• Docket Number: CIVIL APPEAL NO 70/2015
• Court: Court of Appeal (Jamaica)
• Date: 06 May 2016

[2016] JMCA Civ 24

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

CIVIL APPEAL NO 70/2015

Between:

National Commercial Bank Jamaica Ltd

Appellant

and

The Industrial Disputes Tribunal

1st Respondent

Peter Jennings

2nd Respondent

Mrs Sandra Minott-Phillips QC and Gavin Goffe instructed by Myers Fletcher and Gordon for the appellant

Miss Carlene Larmond instructed by the Director of State Proceedings for the 1 ^st respondent

Douglas Leys QC , Miss Kimone Tennant and Douglas Thompson instructed by Douglas A B Thompson for the 2 ^nd respondent

Ms Tanya Ralph representing the 1 ^st respondent

Brooks JA

1 I have read the comprehensive judgment of my learned sister Sinclair-Haynes JA. It sets out in full all the facts and circumstances pertaining to this appeal from the decision of Sykes J to refuse National Commercial Bank Jamaica Limited (NCB) permission to apply for judicial review of a decision of the Industrial Disputes Tribunal (IDT). There is, therefore, no need for me to set those out in this brief comment.

2 It will be sufficient to say that the IDT, after a hearing before it, found that NCB's termination of its employment of Mr Peter Jennings was unjustified. As a consequence it ordered that he be re-instated in his employment or be paid compensation for a particular period.

3 NCB complains that there are real prospects of success for arguments that the IDT made a number of errors of law in arriving at its decision. It contends that Sykes J was, therefore, wrong to have refused permission for it to apply for judicial review.

4 It would be tempting, having read the detailed and scholarly judgments of both Sykes J and Sinclair-Haynes JA, to say that the requirement of such comprehensive treatment of the issues suggests that they ought to have been the subject of judicial review. Having considered the matter carefully, however, I have come, not without hesitation, to the conclusion that both learned jurists are correct.

5 The IDT in its terms of reference was asked to ‘determine and settle the dispute between the National Commercial Bank on the one hand and Mr. Peter Jennings on the other hand over the termination of his employment’. It did just that.

6 It may be that it took a controversial, if even incorrect, position on the issue of what constituted gross negligence, which was an issue of law. I agree with the reasoning, however, that the flaw was not determinative of the question of whether it was arguable in law, that its decision should be overturned. It is my view that the larger picture of the IDT's review of the situation leading to Mr Jennings' dismissal was more important in the context of whether judicial review was appropriate.

7 As has been pointed out by Sinclair-Haynes JA, the courts have consistently taken the view that they will not lightly disturb the finding of a tribunal, which has been constituted to hear particular types of matters. The courts will generally defer to the tribunal's greater expertise and experience in that area. The IDT is such a tribunal. The learned judge of appeal has admirably set out, and examined, all the authorities supporting the principles to which reference has been made above. They need not be set out here.

8 In this case, NCB summoned Mr Jennings to a disciplinary hearing from which he stood the chance of losing his employment and, as a 33 year banker, his career. The IDT examined the circumstances leading to Mr Jennings' dismissal and found that he was unjustly treated. In its review of those circumstances, it found that he was not given enough time to prepare to meet the case against him. It found that the person who had drafted the charges, which he was to face at the hearing, constituted the tribunal which was to make the decision at the hearing. It further found that he was deprived of legal representation at that hearing and at the appeal from the decision of that hearing. All those issues spoke clearly to the issue of fairness in the context of the case.

9 There was evidence from which the IDT could have made those findings of fact. It was entitled, from its mandate and its experience, to conclude that he had been unfairly treated and that his dismissal was unjustifiable. A court should not interfere with such a finding. In those circumstances, judicial review was inappropriate. I agree that the application for judicial review ought to have been refused and that Sykes J was correct to have done so. I would dismiss the appeal.

Sinclair-Haynes JA

10 This is an appeal by National Commercial Bank Jamaica Ltd (NCB), from Sykes J's order refusing it leave to apply for judicial review of the Industrial Disputes Tribunal's (IDT) decision in favour of Mr Peter Jennings.

Background

11 Mr Jennings was the branch manager of one of NCB's branches. He was dismissed for allegedly approving eight loans which were either unsecured loans in amounts which exceeded his authorised limit as branch manager to approve, or which were insufficiently secured. It was further alleged that he failed to conduct or to ensure that proper due diligence was conducted as the documentation supporting seven of the eight loans were false. It was NCB's claim that his conduct fell below that which was expected of bank managers and more so, one of his experience. At the time of his dismissal, he had been with NCB for 33 years.

12 Mr Jennings was summoned by Mrs Audrey Tugwell Henry, NCB's senior general manager in retail banking division, to an internal hearing into the allegations to be held on 6 November 2012. On 19 November 2012, his employment was terminated. His appeal against that decision to the bank's appeal tribunal was dismissed.

13 He consequently complained against the dismissal to the IDT. In dealing with the matter, the IDT heard NCB's arguments regarding Mr Jennings' alleged negligence and it also heard Mr Jennings' several complaints about the manner of his dismissal.

Mr Jenning's submission before the IDT

14 In summary Mr Jennings' complaints were:

1

He had served NCB for 33 years. His success in making a profit for NCB at the various branches he served was described as phenomenal. He had had a blemish-free record with NCB of over 30 years, during which time he had earned many awards for excellence and had met all performance targets. At the time of his dismissal, only one of the eight loans for which he was alleged to have acted improperly was a non-performing loan. All others were fully paid up or, within NCB's policy, performing. 2. He was sent on leave, by letter dated 18 October 2012, without being told the reason and in total ignorance of any allegation against him. 3. Sometime after 6:00 pm on 5 November 2012, he was informed by way of telephone (by the person whom he discovered later chaired the hearing), to attend a disciplinary hearing at 10:30 the following morning. He subsequently received a letter to that effect on 5 November 2012. Mr Jennings informed the person to whom he spoke on the telephone, that he required legal representation. He was informed by the person that if he attended with an attorney ‘the meeting would not happen’. Mr Jennings was neither informed during the telephone conversation nor in writing as to the kind of representation that was permissible. 4. Less than 18 hours after receiving verbal notice, he received the letter which stated ‘a series of complex charges, with no particulars of specific actions’ by Mr Jennings to support the charges. Mr Jennings was initially denied particulars of the charges against him. On 5 November 2012, when he was eventually notified by way of letter, the charges were too vague to be properly defended. For example, many of the charges included allegations that Mr Jennings acted on the basis of fraudulent letters of employment from loan applicants. The documentary evidence however revealed that the letters, as far as he could have been aware, were genuine. He was only told that they were fraudulent, without specifying reasons for so alleging. 5. NCB did not provide Mr Jennings with a copy of Mr Richard Hines' (the investigator) report which was submitted to NCB and which led to the charges and termination of his employment. 6. Only one of the ‘allegedly irregular loans’ which was placed before the tribunal was classified as a ‘bad’ or ‘non performing’ loan. The others were ‘performing’ even if they were slightly behind. Further, having sent him on leave, he had no influence, nor could he to prevent the others from falling into serious delinquency. 7. Mr Jennings was repeatedly denied the right to be represented by an attorney-at-law of his choice, both at the original disciplinary hearing and at his appeal against his dismissal. NCB insisted that only an NCB employee could represent him. This ‘[was] unfair, unjustifiable and contrary to NCB's own disciplinary procedures’, as NCB was the accuser making disciplinary charges against him. Accordingly, Mr Jennings did not feel comfortable seeking representation from NCB against NCB because this would have been ‘akin to having an appeal from Caesar to Caesar’. 8. No act of impropriety was proven against Mr Jennings in any of the allegations raised. Mr Jennings made it clear at the disciplinary hearing and to the ‘appeal body’ that he had acted properly and within NCB's policy at all material times. 9. The onus in the proceedings was on NCB to justify its dismissal of Mr Jennings. Reliance was placed on the case of Industrial Disputes Tribunal v University of Technology Jamaica and another[2012] JMCA Civ 46 . No evidence had been led of any wrongdoing on his part that could justify dismissal, or even that he received a fair and impartial disciplinary process before being dismissed. 10. At all material times, Mr...