The Bank of Jamaica v The Industrial Disputes Tribunal

• Jurisdiction: Jamaica
• Judge: Evan Brown, J
• Judgment Date: 10 November 2017
• Neutral Citation: [2017] JMSC Civ 173
• Docket Number: CLAIM NO. 2015 HCV 06134
• Court: Supreme Court (Jamaica)
• Date: 10 November 2017

[2017] JMSC Civ 173

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Evan Brown, J

CLAIM NO. 2015 HCV 06134

Between

The Bank of Jamaica

Claimant

and

The Industrial Disputes Tribunal

1 ^st Defendant

and

The Bustemante Industrail Trade Union

2 ^nd Defendant

Mr. Patrick Foster QC and Miss Ayana Thomas instructed by Nunes, Scholefied, DeLeon and Co for the claimant.

Miss Carla Thomas and Miss Christine McNeil instructed by the Director of State Proceedings for the 1 ^st defendant.

Cases Mentioned:

R v. Sussex Justices ex p McCarthy [1924] 1 K.B. 256 – Porter v. Magill [2002] 2 AC 357 – Slater v. Leicestershire Health Authority [1989] IRLR 16 – Georgiou v. Enfield London Borough Council [2004] All ER (D) 135 – Byrne v. BOC Ltd [1992] IRLR 505 – Board of Education v. Rice [1911–13] All ER 36.

Judicial Review — Application for order of certiorari — Whether Industrial DisputesTribunal erred in ordering re-instatement of dismissed worker — Natural justice — whether disciplinary procedure adopted by employer was fair.

Introduction

1 On the 15th March, 2016, the claimant was granted leave to apply for Judicial Review of the award made by the first defendant on the 30th September, 2015. The 2nd defendant was served but did not participate in the hearing. Pursuant to the grant of leave, the claimant filed a Fixed Date Claim Form (FDCF) on the 24th March, 2016 setting out the orders it seeks. Principally, the claimant seeks an order of certiorari quashing the award made by the first defendant that: (a) the company reinstate Mr. Frank Johnson on or before October 19, 2015 or (b) failure to reinstate Mr. Johnson as stipulated in (a) above, the company shall pay him compensation in the amount of nine (9) months normal salary as relief.

Background

2 The claimant, the Bank of Jamaica (the BOJ), is the Central Bank of Jamaica and is responsible for the regulation of the country's financial sector. Its main objective is to issue and redeem notes and coins, to keep and administer the reserves of Jamaica and to act as the bank for the Government of Jamaica.

3 The claim for judicial review has its genesis in a decision taken by the BOJ to terminate the employment of Mr. Frank Johnson by letter dated 23rd July, 2013, effective 25th July, 2013. Mr. Johnson was employed to the BOJ as a Training Technology Specialist (Level 14). He held the position of Assistant Director of the Training Institute at the BOJ until the date of his termination.

4 These are the circumstances which led to Mr. Johnson's termination. The BOJ had a telephone system through which members of staff made calls in connection with their duties as well as personal calls. By way of control and to facilitate the recovery of the cost of personal calls, the BOJ gave each employee an authorized access code to make telephone calls. This allowed the BOJ to collate the telephone bills for each extension on a monthly basis which, in turn, facilitated employees identifying their personal calls and remitting the appropriate payment.

5 In December 2012 the BOJ conducted a routine internal audit of the Telecommunications Systems Department. The audit disclosed that an access code in the name of Sabrina Lewis (the Sabrina Lewis access code) was used to make calls and the personal calls so made were not being paid for. That led to an internal investigation in January 2013.

6 The investigation revealed that the BOJ never employed a Sabrina Lewis. The investigative exercise disclosed that the calls made with the Sabrina Lewis access code originated from Mr. Frank Johnson's extension. Mr. Johnson subsequently admitted the use of the Sabrina Lewis access code.

7 Formal notification of the investigation and review of delinquency reports for the period January to September 2012 was given to Mr. Frank Johnson by memorandum dated 24th April, 2013. The memorandum referenced his admission in the use of the Sabrina Lewis access code and requested a written report from him. Mr. Johnson duly provided the report. He admitted in the report that subsequent to the disconnection of his officially assigned access code he continued to make calls, using the Sabrina Lewis access code. He disclosed that the Sabrina Lewis access code had been given to him by a Jamaica Telephone Company/Cable & Wireless technician while his extension was being repaired.

8 Mrs. Novelette Panton, Senior Director of Human Resources, Pension Policy and Training Institute Manager, requested reports from the persons who appeared to be concerned with the issue. She afterwards determined that a disciplinary hearing should be held. Accordingly, she invited Mr. Johnson to a disciplinary hearing on the 9th May, 2013 at 2:00 PM, by letter dated 7th May, 2013. A memorandum, with several reports of the internal auditor's investigations attached, was also sent to the Chief Union Delegate of the Bustamante Industrial Trade Union (BITU), notifying her of the disciplinary hearing. Mr. Johnson was a member of the BITU.

9 The hearing was held on the 9th and 10th May, 2013. It was conducted by a disciplinary panel, comprising Mrs. Novelette Panton, Chairman, Miss Avlana Johnson, legal counsel, Miss Arlene Tomlinson, Director of Human Resources, Mr. Norbert Bryan, Director of Currency and Mr. Maurice McFarlane, Director of Property Office Services.

10 Over the passage of these two days several witnesses were called. Mr. Johnson made three admissions before the disciplinary panel. Firstly, he admitted using the Sabrina Lewis access code several years after it was given to him by the telephone technician for temporary use. Secondly, he confessed to using the Sabrina Lewis access code to make personal calls after the disconnection of his assigned access code for non-payment of bills. Thirdly, he admitted that he did not inform the accounts department of the use of the Sabrina Lewis access code and no account was made for personal calls made by him using the Sabrina Lewis access code before the audit revealed the use of the code.

11 At the end of the hearing the disciplinary panel produced a report. The disciplinary panel found Mr. Johnson and another employee in breach of the BOJ's policies. The disciplinary panel recommended the suspension of both persons for a period of thirty days without pay. It appears the BOJ's grievance procedure required the submission of the disciplinary panel's report to the Committee of Administration (COA), an intermediate review panel. The members of the COA were, Division Chiefs, Senior Deputy Governor, Deputy Governors and General Counsel.

12 The COA examined the report received from the disciplinary panel and concluded that it should be returned to the disciplinary panel with a request that they reconvene and reconsider the matter in respect of Mr. Johnson. The disciplinary panel duly reconvened and made a fresh recommendation that Mr. Johnson's employment should be terminated. The disciplinary panel rested its latter recommendation on the lack of remorse shown by Mr. Johnson and his insistence that he had not done anything wrong. The disciplinary panel also felt that as a member of the bank's management team, the deceit and dishonesty displayed by Mr. Johnson had irretrievably broken the bonds of confidence and trust between himself and the bank. The report, with an addendum, was again submitted to the COA.

13 The COA in turn submitted the recommendation for the termination of Mr. Johnson's employment to the Management Committee (MC), in accordance with the BOJ's grievance procedure. The MC is the decision-making body. The persons who sat on the MC were the Governor, Senior Deputy Governor, Deputy Governors and the General Counsel. The MC accepted the recommendation of termination after deliberations. Mr. Johnson was called to a meeting and informed of the decision to terminate his employment. Formal notification was given to him by letter dated 23rd July, 2013, making his dismissal effective 25th July, 2013.

14 By letter of the 25th July, 2013, the BITU wrote to the BOJ demanding the immediate reinstatement of Mr. Johnson. The BITU also indicated through that medium that it was making itself available for an appeal. The BOJ responded that all stages of its grievance procedure had been completed, all senior managers having been involved in the disciplinary process. The BITU referred the matter to the Ministry of Labour. The Ministry of Labour in turn referred the matter to the Industrial Disputes Tribunal (IDT) by letter dated 5th December, 2013.

15 In its referral to the IDT, the Ministry of Labour set out the terms of reference, in accordance with section 11A (1) (a) (i) of the Labour Relations and Industrial Disputes Act of 1975 ( LRIDA). The IDT was charged to:

“To determine and settle the dispute between The Bustamante Industrial Trade Union on the one hand and the Bank of Jamaica on the other hand over the termination of the employ of Mr. Frank Johnson.”

16 The IDT, by a majority, found:

• (i) The composition of the MC comprising 83.33% or 5 of 6 members of the COA displayed a lack of transparency and gave rise to accusations of victimization, discrimination, bias and unfair treatment. It also gave support to the union's substantive claim that the process that terminated the services of Mr. Johnson was an unwarranted overturn of the recommendation of the disciplinary panel by a COA that substantially reported to itself, rendering the termination in breach of procedural fairness.

• (ii) By virtue of Mr. Johnson's actions, he violated the bank's human resources manual and the sanction for those violations was either suspension or dismissal. His actions were deceitful as well as dishonest.

• (iii) It appeared evident and reasonable to assume that but for the audit results, these practices of deception and dishonesty of non-payment for personal calls would have continued ad infinitum; and for those reasons,...