National Commercial Bank v Jennings
| Jurisdiction | Jamaica |
| Judge | Wright, Q.C, C. |
| Judgment Date | 06 May 2015 |
| Court | Industrial Dispute Tribunal (Jamaica) |
| Docket Number | IDT 8/2013 |
| Date | 06 May 2015 |
Industrial Disputes Tribunal
Wright, C.; Hall, M.; McNish, M.
IDT 8/2013
Employment Law - Industrial dispute — Termination of employment — Dismissal — Allegations of unethical and professional conduct by worker — Dishonesty — Whether disciplinary process breached rules of natural justice — Dismissal found to be unjustified — Worker to be reinstated and/or compensated.
By letter dated June 7, 2013 the Honourable Minister of Labour and Social Security pursuant to 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:–
The Terms of Reference were as follows:
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.”
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. Norman Wright, Q.C. — Chairman
Mr. Rion Hall, J.P. — Member, Section 8(2)(c)(ii)
Mr. D. Trevor McNish — Member, Section 8(2)(c)(iii)
The Bank was represented by:
Mr. Gavin Goffe — Attorney-at-Law
Miss Natasha Rickards — Attorney-at-Law
Mr. Jermaine Case — Attorney-at-Law
In attendance were:
Miss Corrine Henry — Legal Counsel
Mr. Dave Garcia — Legal Counsel
Mr. Euton Cummings — Asst. General Manager Group, HR Division
Mr. Norman Reid — Senior Asst. General Manager
Mr. Richard Hines — Manager of NCB Group's Fraud Prevention Unit
The Aggrieved Workers was represented by:
Mr. Gordon Robinson — Attorney-at-Law
Mr. Harold Brady — Attorney-at-Law
Mr. Harold Malocolm — Attorney-at-Law
In attendance were:
Mr. Paul Stewart — Consultant
Mr. Peter Jennings — Aggrieved Worker
Briefs were submitted by the parties and oral submissions made thirty-three (33) Sittings from April 30, 2013 to January 29, 2015
National Commercial Bank Jamaica Limited (“NCB” or “the Bank”) operates a network of branches in locations across Jamaica. Mr. Peter Jennings, who was employed to the Bank for over thirty (30) years, was the Branch Manager at the St. James Street Branch in Montego Bay and before that of the May Pen Branch. At the material time, the branches were placed under the management of Branch Managers who enjoyed extensive autonomy in their management subject to certain policies and guidelines laid down by the Bank's executive management team and the Board of Directors.
Each branch had its own Credit Department which had primary responsibility for assessing the credit worthiness of loan applications based on certain Risk Management criteria laid down by the Bank. During the period of February 2012 to June 2012, Mr. Jennings approved at least eight (8) loans which were subsequently classified as delinquent and/or non-performing and many resulted in significant losses to the Bank.
The Bank considered that Mr. Jennings approved the loans without conducting any or sufficient due diligence in keeping with the Bank's policies and Risk Management criteria.
Mr. Jennings was found to be grossly negligent in the performance of his duties, particularly in that he:
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a. Authorized appropriation of loan proceeds contrary to the stated purpose of the loan:
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b. Approved loans supported by fictitious and fraudulent job letters without himself conducting, or ensuring that others conducted, such due diligence as was necessary and/or appropriate.
The amount disbursed under these 8 loans totalled in excess of $48.5M and by letter dated November 5, 2012, Mr. Jennings was charged with misconduct and/or neglect involving the following acts and/or conduct:
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i. Actions (including deliberate and/or negligent actions, unethical and/or unprofessional conduct) which will result, or have the potential to result, in significant financial losses to the NCB group;
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ii. Actions (including deliberate and/or negligent actions, unethical and/or unprofessional conduct) which bring the NCB Group's name and/or image into disrepute or have the potential to do so;
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iii. Engaging in behaviour that causes the NCB Group to question his honesty and integrity in carrying out his functions and duties.
On the same day, in a conversation between Mrs. Audrey Tugwell Henry, Senior General Manager in the Retail Banking Division and Mr. Jennings, the latter asked whether he should bring an attorney-at-law to the hearing which the same letter required him to attend on November 6, 2012. Mrs. Tugwell Henry responded that the Bank was not going to have an attorney and that if he brought one, the hearing would have to be postponed for the Bank to consider its position. Mr. Jennings made no request to bring an attorney-at-law to the hearing, nor did he ask for the hearing to be postponed.
The hearing was convened on November 6, 2012 before a disciplinary panel composed of Mrs. Audrey Tugwell Henry and Mr. Norman Reid, Regional Manager, Retail Banking Division. Having heard Mr. Jennings' responses to the charges that were laid, the disciplinary panel determined that all of the charges had been substantiated. In addition to the fact that Mr. Jennings' actions were negligent, they resulted in actual losses to the Bank and had the potential to tarnish its reputation as a diligent and reputable financial institution. They also considered that some of Mr. Jennings' responses to the questions put to him caused them to question his honesty and integrity.
A meeting convened on November 19, 2012, at which time Mr. Jennings was advised of the Bank's decision to terminate his employment. He was accordingly so advised in writing by letter of even date. Mr. Jennings immediately appealed the decision and the appeal was scheduled for November 29, 2012, to be heard by Mr. Dennis Cohen, Deputy Group Managing Director Mr. Cohen had not been involved in the case prior to the appellate stage.
The appeal was postponed as a result of Mr. Jennings request, made for the first time, for legal representation. The appeal was rescheduled for December 7, 2012. Mr. Jennings was advised in writing that he could take a representative to the appeal, provided the representative was an employee of the Rank and provided further that Mr. Cohen was advised of that employee's name at least 3 days prior to the hearing of the appeal.
Mr Jennings insisted that he be allowed to take Mr. Harold Brady Attorney-at-Law, to the appeal. The Bank maintained its position that it would not agree to Mr. Brady being present for this reason. Mr. Jennings did not attend the hearing of the appeal and in his absence the appeal was heard on the basis of his written grounds of appeal.
The outcome of the appeal was communicated to Mr. Jennings by way of letter dated December 12, 2012, wherein he was advised that the decision arising from the disciplinary hearing remained unchanged.
The Rank in its presentation to the Tribunal adduced oral and documentary evidence and made submissions in support of its contention that its decision to terminate Peter Jennings' contract of employment was lawful, fair and justifiable. This is best summarised as follows:
- Peter Jennings, employed to the Bank in the position of Assistant General Manager at the Montego Branch, situated at St James Street, was by letter dated November 5, 2012, delivered to him at his home at 6:00 p.m. that same evening, requested to attend a hearing the following morning on November 6, 2012 at 10:30 a.m.
At the hearing, he was charged with misconduct and/or negligence, particularly. with respect to the following acts/or conduct:–
(i) Actions (including deliberate and/or negligent actions, unethical and/or unprofessional conduct) which will result, or have the potential to result, in significant financial losses to the NCB Group;
(ii) Actions (including deliberate and/or negligent actions, unethical and/or unprofessional conduct) which bring the NCB Group's name and/or image into disrepute or have the potential to do so;
(iii) Engaging in behaviour that causes the NCB Group to question your honesty and integrity in carrying out your functions and duties.
The charges were based on evidence which could lead the Bank to conclude that he had approved and/or granted unsecured loans to a number of the Bank's clients.
Arising from the hearing, the Bank determined that the charges had been established and took the decision to terminate Mr. Jennings' contract of employment. Mr. Jennings was accordingly so informed by letter dated November 19, 2012.
2. The decision to terminate the services of Mr. Jennings emanated from his conduct in approving a number of loans within a short space of time, which were either classified as non-performing or were soon to be so classified. Also, on reviewing the loan applications and supporting documents, it was revealed that nearly all the information supplied by the applicants was false or fabricated. It also appeared that little or no steps had been taken to verify the information so supplied by the applicants.
3. The Officer of the Bank who conducted the investigations into this matter, testified that he was able to identify a number of ‘red flags’, which should have alerted the Branch Manager to the questionable nature of these loan applications and these are listed below as follows:
a) The applicants identified had travelled from other parishes, in order to apply for loans at the St James Street Branch and were new customers to the Bank.
b) Job letters in support of the loan applications, mentioned salary figures which should have aroused suspicion in any...
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