National Commercial Bank Jamaica Ltd v Industrial Disputes Tribunal and Another

• Jurisdiction: Jamaica
• Judge: Morrison P,Mcdonald-Bishop JA,P Williams JA
• Judgment Date: 11 November 2016
• Neutral Citation: JM 2016 CA 98
• Docket Number: SUPREME COURT CIVIL APPEAL NO 70/2015 MOTION NO 8/2016
• Court: Court of Appeal (Jamaica)
• Date: 11 November 2016

[2016] JMCA App 27

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P

The Hon Mrs Justice Mcdonald Bishop JA

The Hon Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NO 70/2015

MOTION NO 8/2016

Between

National Commercial Bank Jamaica Limited

Applicant

and

The Industrial Disputes Tribunal

1 ^st Respondent

and

Peter Jennings

2 ^nd Respondent

Gavin Goffe and Adrian Cotterell instructed by Myers Fletcher & Gordon for the applicant

Douglas Leys QC , Douglas Thompson and Miss Kenika Brissett for the 2 ^nd respondent

Morrison P

Introduction

1 This is an application for conditional leave to appeal to Her Majesty in Council (“the Privy Council”), pursuant to section 4(a) of The Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, from a decision of this court given on 6 May 2016. The applicant (“the bank”) invokes section 110(2)(a) of the Constitution of Jamaica (“the Constitution”), which provides that an appeal shall lie to the Privy Council from decisions of the Court of Appeal in any civil proceedings, with the leave of the Court of Appeal, ‘where in the opinion of the [court] the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council …’

2 In opposing the application, the 2 ^nd respondent (“Mr Jennings”) contends that the proposed appeal involves no question of either great general or public importance and that the application ought to be refused. The single issue which arises on this application is therefore whether the criterion of ‘great general or public importance or otherwise’ has been made out in this case.

3 As will presently emerge, the matter arises out of Mr Jennings' dismissal from the service of the bank; his subsequent successful challenge to the dismissal before the 1 ^st respondent (“the IDT”); and the bank's so far unsuccessful attempt to overturn the decision of the IDT, by way of, in the first place, an application for leave to apply for judicial review of its decision. At the outset of the hearing of the current application, the court was advised by way of a letter from the Director of State Proceedings dated 23 September 2016 that the IDT ‘takes no position on the application … and will take no further part in this matter’.

The factual background

4 The bank operates a network of commercial banking branches in locations across Jamaica. Mr Jennings was employed to the bank for over 30 years and was at the material time the manager of its Saint James Street branch in Montego Bay. In November 2012, as a result of an internal investigation conducted by the bank with respect to a number of delinquent or non-performing loans which had been approved by Mr Jennings as branch manager, Mr Jennings was charged with misconduct and or neglect. It was said that these loans had been approved by him without any or sufficient prior due diligence in keeping the bank's policies and risk management criteria.

5 Mr Jennings was first made aware of these charges, by way of a letter signed by a senior officer of the bank, on 5 November 2012. On the following day, the bank constituted a disciplinary panel to consider them. The panel comprised the same senior officer of the bank who had signed the letter proffering the charges against Mr Jennings, and another senior staff member of the bank. Mr Jennings was not represented at this hearing. Having heard Mr Jennings' responses to the charges against him, the panel concluded that they had been made out and, at a subsequent meeting on 19 November 2012, Mr Jennings was advised of the bank's decision to terminate his employment. Mr Jennings immediately appealed against this decision and the appeal was scheduled for 29 November 2012, before the deputy group managing director of the bank. Mr Jennings was told that, while he could be represented at the appeal by an employee of the bank, he could not have an attorney-at-law of his choice present. In the result, Mr Jennings did not attend the hearing of the appeal and it proceeded in his absence. The appeal was dismissed and the decision of the disciplinary panel was confirmed.

The IDT's award

6 Mr Jennings disputed the termination of his employment and the dispute was referred by the Honourable Minister of Labour and Social Security to the IDT, ‘for settlement’, pursuant to section 11A(1)(a)(i) of the Labour Relations and Industrial Disputes Act (“the LRIDA”). By its award made on 28 April 2015, the IDT found that the termination of Mr Jennings' employment by the bank was unjustified. Accordingly, pursuant to section 12(5)(c)(iii) of the LRIDA, the IDT ordered Mr Jennings' reinstatement with payment of full emoluments, from the date of termination to the date of reinstatement. Alternatively, upon failure to comply with the order for reinstatement, the bank was ordered to compensate Mr Jennings in the amount equivalent to 220 weeks total emoluments at the current rate.

7 In arriving at this conclusion, the IDT considered, firstly, that it had not been established that Mr Jennings had been negligent, committed fraud or benefitted from the questionable loans in any way. As regards the question of negligence, the IDT applied a definition of gross negligence connoting a deliberate neglect of duty and considered that, ‘[w]hile there is clear evidence that less than adequate due diligence was applied in each of the questionable loans there is no evidence that this was a deliberate act on the part of anyone’ (see page 15 of the IDT's award dated 28 April 2015). (As will shortly be seen, this court subsequently took the view that, in applying this definition of gross negligence, the IDT fell into error — see paras [11]–[12] below.)

8 Secondly, the IDT considered that the bank had failed to observe the rules of natural justice in relation to Mr Jennings' dismissal, in that (i) he had been denied the right to representation by his attorney-at-law; (ii) the procedure which had been adopted to consider the charges against him had not been managed by persons who were fair and objective, but rather by persons who were part of the institution, that is, the bank, which brought the charges against him; and (iii) he had not been advised of the charges against him well in advance of any hearing, so as to enable him to understand them and to seek such legal representation or assistance as he might have considered necessary in the circumstances.

The court proceedings

9 Section 12(4)(c) of the LRIDA provides that an award of the IDT ‘shall be final and conclusive … except on a point of law’. The bank sought leave, pursuant to rule 56.3(1) of the Civil Procedure Rules 2002 (“the CPR”), to apply for judicial review of the IDT's decision. The application was heard and refused by Sykes J, who applied the now well-known test for the grant of leave laid down by the Privy Council in Sharma v Browne-Antoine (2006) 69 WIR 379, 387–388, that is, that ‘…the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or alternative remedy …’ Accordingly, Sykes J observed (at para. [2] of his judgment), ‘… if the prospects of success are highly unrealistic then leave ought to be refused’.

10 Sykes J then went on to canvas in some detail the reasons for the enactment of the LRIDA, what it was intended to do and what the IDT was authorised to do when settling disputes. Among other things, Sykes J referred to the statement by Rattray P in Hotel Four Seasons Ltd v The National Workers Union (1985) 22 JLR 201, 304, that the IDT is ‘vested with the jurisdiction relating to the settlement of disputes completely at variance with basic common law concepts, with remedies including reinstatement for unjustifiable dismissal which were never available at common law and within a statutory regime constructed with concepts of fairness, reasonableness, co-operation and human relationships never contemplated by the common law’. Citing more recent authority from this court, Sykes J also referred to The Industrial Disputes Tribunal v University of Technology Jamaica and another [2012] JMCA Civ 46 , to make the point that this decision ‘has now closed off any further argument around the point of whether the court can interfere with the IDT's findings and conclusions once there is available evidence to support the view’. 1 In the instant case, Sykes J considered (at para. [44]) that ‘… the application for leave in this case is really about the [IDT's] findings of fact and conclusions drawn from those findings … there is no basis for judicial review because no law is involved’. In the result, the learned judge held in disposing of the application for leave to apply for judicial review

(at para. [65]) that there was ‘no realistic prospect of success in light of how the jurisprudence has developed and where it now is’.

11 The bank's appeal against Sykes J's decision was dismissed by this court. Although some aspects of the reasons given by Brooks JA and Sinclair-Haynes JA, with whom P Williams JA (Ag) (as she then was) agreed, were not on all fours with those given by Sykes J, I take the following statement by Brooks JA (at paras [5]–[9]) as a fair summary of the court's overall conclusion in disposing of the bank's appeal:

‘[5] The IDT in its terms of reference was asked to “determine and settle the dispute between [the 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...