National Solid Waste Management Authority v Dawes
| Jurisdiction | Jamaica |
| Judge | Wright, Q.C, C. |
| Judgment Date | 20 March 2015 |
| Court | Industrial Dispute Tribunal (Jamaica) |
| Docket Number | IDT 6/2014 |
| Date | 20 March 2015 |
Industrial Disputes Tribunal
Wright, C.; Hall, M.; McNish, M.
IDT 6/2014
Employment Law - Industrial dispute — Termination of employment — Summary dismissal — Delay — Whether company failed to follow procedure of due process — Whether dismissal contravened Labour Relations and Industrial Disputes Act — Dismissal found to be unjustified — Compensation awarded
By letter dated February 05, 2014, the Honourable Minister of Labour and Social Security pursuant to Section 9(3) 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 Solid Waste Management Authority on the one hand, and Mr. Othniel Dawes 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 — Member, Section 8(2)(c)(ii)
Mr. D. Trevor McNish — Member, Section 8(2)(c)(iii)
The Authority was represented by:
Miss. Marlene Chisholm — Attorney-at-Law
General's Chambers — Attorney-at-Law
In attendance were:
Mrs. Deniesha A.M. Darling — Legal Director/Company Secretary
Mrs. Chelsea Shellie Vernon — Industrial Relations & FIR Manager
Mr. Dawes was represented by:
Mr. Canute Brown — Attorney-at-Law
In attendance was:
Mr. Othneil Dawes — Aggrieved Worker
Map were submitted by the parties and oral submissions made during nine (9) sittings, from July 1. 5, 2014 to February 2, 2015.
The National Solid Waste Management Authority (NSWMA) is established as a body corporate by section 3 of the National Solid Waste Management Act which sets out its functions at Section 4(1). In order to achieve its mandate the NSWMA operates and manages four regional limited liability companies, namely, Metropolitan Parks & Markets Waste Management Limited (MPM) located at 61 Half Way Tree Road, Kingston 10, North Eastern Parks & Markets Waste Management Limited (NEPM) located at 2 Southern Road, New Backfield, Ocho Rios, St. Ann, Southern Parks & Markets Waste Management Limited (SPM) located at 4A Mandeville Plaza, Manchester and Western Parks and Markets Waste Management Limited (WPM) located at Al Life of Jamaica (LOJ) Freeport, Montego Bay, St. James.
Mr. Dawes commenced employment with WPM on October 8, 1987, as a Public Cleansing Inspector and subsequently transferred to NSWMA, as at April 4, 2003, and in July 2003, became a Senior Public Cleansing Inspector. He reported to the Regional Operations Manager, and vas in charge of the parishes of Westmoreland and Hanover
On March 10, 2009, while attending a meeting at the Regional Office, in Montego Bay, St. James, he was given a letter of transfer, to be effective on. March 16, 2009. He wrote to the NSWMA requesting a reconsideration of the transfer based on personal circumstances being experience at the time. He subsequently became ill and under certificate from his medal practitioner, was given fourteen (14) days sick leave. He had no response to his request and due to illness did not report for work on March 16, 2009. However on March 18, 2009, he was summarily dismissed.
The matter was referred to the Ministry of Labour and Social Security for mediation but no resolution was received. The party's request to have the matter sent to the IDT was initially denied on the basis that the dispute occurred before the LRIDA was changed in March, 2010 to allow individual disputes to be referred. Mr. Dawes took the matter to the Supreme Court and based on an order in May, 2013, the Minister's decision was overruled and the dispute then referred to the IDT by letter dated February 7, 2014.
Mr. Dawes contends that he obtained employment with the Health Department of the Westmoreland Parish Council in 1974, as a Public Cleansing Inspector. By letters dated June 23, 2003 and July 2, 2003, he was transferred to the NSWMA in the same capacity. He was subsequently promoted to be a Senior Public Cleansing Inspector.
From inception, he was assigned to the parishes of Westmoreland and Hanover, reporting to the Regional Office, located in Montego Bay, St. James. He also advised of acting as Manager of Operations in 2005, in the Montego Bay office and of telling his Supervisor that he would not wish to do that job again, due to its inconveniences.
During his employment, he worked diligently and was held in high esteem by his peers and Management at the NSWMA, as one who was fully committed to the organization and its goals. He received letters of commendation from the highest level of management for his competence, dedication and loyalty and in an article in the NSWMA's newsletter of October to December, 200; he was saluted as one of the organization's “Unsung Heroes”.
On Wednesday, March 11, 2009, the then Executive Director of the NSWMA, Mrs. Joan Gordon-Webley, convened a meeting of all the Officers in the MPM region, at the regional office in Freeport, St. James, which he attended. During the meeting an open letter from the Executive Director, dated March 10, 2009, was relayed to him, advising that he was being transferred to the St. James Region, effective March 16, 2009. He was taken by surprise since there were no previous discussions or consultations with him. At the end of the meeting, he sought to have dialogue with the Executive Director, but she objected. He wanted to speak to her concerning family issues which were affecting him at the time; e.g. his father's illness, for whom he was responsible and the imminent departure of his daughter-in-law, a nurse at the Savanna-la-mar hospital, who was about to take up a job in-Bermuda and leaving two young children in his care.
The1following day, March 12, 2009, he wrote the Executive Director, advising her as follows:
“I acknowledge receipt of your letter dated March 10, 2009 regarding transfer of services to St. James; which because of other family commitments I will be unable to respond to your directive. Thanks in advance for your meaningful considerations.”
He had hoped that his letter would have led to the dialogue he desired, as a transfer to the St. James Region would see him having to travel on a daily basis or relocating. He faxed the letter to the Executive Director, so she could get it immediately while the original was sent in the usual manner, through the Regional Office. He never received an answer.
On Friday, March 13, 2009, he was not feeling well and did not go to work. On the Saturday he went to the doctor and for the first time he learnt that he was hypertensive. He received a doctor's certificate for fourteen (14) days sick leave. After leaving the doctor he called his immediate Supervisor, Mr. Milverton Munroe, and advised him of his illness and the sick leave certificate. On the Monday morning of March 16, 2009, he sent the medical certificate and a sick leave application form to the Regional Office. He also attended the Office in Savanna-la-mar to sign off the bills for the period March 1 — 15, 2009 to facilitate the bi-monthly payments to the workers. On the same day, while being on sick leave, a memo dated March 16, 2009, was written to him by Mr. Neville Black, the Acting Regional Manager, under the subject “Communication in a timely manner”. It posited that as directed by the Executive Director he should have taken up the position of Senior Public Cleansing Inspector that morning at 6:00 a. in. His behaviour was unprofessional and unacceptable in that he had not communicated with himself or the Regional Administrator, of his intention to be late or absent. Furthermore as a Manager he was not only expected to lead but lead by example. Consequently, in future he was to endeavour to communicate in a timely manner.
He again wrote to the Executive Director on March 19, 2009, advising that he had reconsidered and would take up the transfer not withstanding his family challenges and that he would be seeking travelling allowance. Again he never received a response.
Following the end of his sick leave on March 27, 2009, he turned up for work in St. James on March 30, 2009. He was surprised to receive a letter dated March 18, 2009, from the Regional Supervisor, Mrs. Marcella Foote. The letter was signed by Ms. Sonia Ball, the Human Resources Manager and copied to the Executive Manager, advising that his services were terminated with immediate effect. The letter referred to the Executive Director's letter of transfer of March 10, 2009, and acknowledging his response of March 12, 2009. It then went on to advise that:
“In your letter of said date you have blatantly refused to carryout the instructions of the Executive Director. In addition, the tone and content of the letter shows discourtesy towards your Supervisor and blatant disregard to the Executive Director's position and authority and abandonment of your position.
The National Solid Waste Management Authority, Schedule of Disciplinary Measures, Item 9 “Insubordination, refusing to carry out reasonable request of your Supervisor” is a breach tantamount to instant dismissal Therefore; a decision has been made for your services with the organization to be terminated with immediate effect.”
He adamantly denied the charges, and reiterated that his letter, in his opinion was neither discourteous nor was his action an act of insubordination, but was simply asking for consideration not to be...
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