Mon | Sep 25, 2017

Trudy-Ann Dixon-Frith | Natural justice: The bane of employers’ existence

Published:Wednesday | August 10, 2016 | 8:00 AM
Trudy-Ann Dixon-Frith

This year, the Court of Appeal delivered a critical decision in National Commercial Bank v Industrial Disputes Tribunal & Peter Jennings, which may have been largely unnoticed by stakeholders in the employment sector.

The court upheld the Industrial Disputes Tribunal (IDT) ruling which found that the National Commercial Bank (NCB) had unjustifiably dismissed Jennings.

The terminology 'unjustifiable dismissal' has been part of the legal landscape of Jamaica since the passing of the Labour Relations & Industrial Disputes Act (LRIDA) in 1975. The LRIDA provided the legislative basis for the Labour Relations Code enacted in 1976.

In the well-known Court of Appeal decision Village Resorts Ltd v Industrial Disputes Tribunal & Anor (Unreported judgment, June 30, 1998), President Rattray equated 'unjustifiable' dismissal to 'unfair' dismissal, holding that the labour code is specifically mandated to "protect workers and employers against unfair practices".

Justice Rattray further described unjustifiable dismissal as an act that is not in accordance with justice or fairness, and noted that the LRIDA had altered the common law principles governing employment contracts.

The issue of fairness loomed large in NCB v Peter Jennings.

Jennings, an NCB branch manager for 33 years, was dismissed for approving eight loans, which were unsecured or insufficiently secured. He was summoned to an internal hearing on November 6, 2012 and dismissed 13 days later.

Finding that the IDT's recognition of the principle of natural justice particularised as: a) an accused has the right to be heard, b) a man should not be a judge in his own cause, and c) the person charged should know the case he has to meet, was entirely proper, the Appeal Court also came to the following conclusions:

i.) While an employer is not disqualified from presiding over disciplinary hearings, natural justice requires that the employee must be apprised of the charge against him and afforded sufficient time to prepare his defence. Natural justice was breached in Mr Jennings' case as he was only given overnight to prepare his defence and was not given a copy of an investigator's report into the disbursement of the loans; and

ii.) While legal representation is not an absolute right for persons appearing before a disciplinary hearing, where the charges are serious and the employee's livelihood and - or reputation may be affected by the outcome,

natural justice requires that he be defended, if he wishes, by legal counsel. Mr Jennings was deprived of legal representation and ought to have been allowed counsel of his choice.

 

UNIVERSAL ACCESS

 

Despite the LRIDA and the code being around for approximately 40 years, experience bears out that both employers and employee are not well versed in their effect on the law regulating dismissal. In 2010, the LRIDA was amended to allow all employees to access the IDT and make a claim for unjustifiable dismissal, removing the limitation to unionised employees.

NCB v Peter Jennings is a stark reminder that the statutory construct under the LRIDA has obliterated the common law principle of summary dismissal. In effect, an employee can no longer be simply summarily dismissed, no matter how egregious the charge.

My view is supported by the acknowledgment of the court in the Village Resorts case, that for a dismissal to be lawful under the LRIDA, it is not sufficient for the employer to show that the employee's conduct fundamentally breached the employment contract. The employer must go further and establish that the employer's action and manner in dismissing the employee was justified.

The LRIDA and the code mandate that an employer implement and scrupulously follow procedures adhering to natural justice when dismissing an employee.

All employers from large corporations to small businesses should prudently familiarise themselves with the LRIDA and the code. Additionally, legal counsel should be sought to prepare and establish internal procedures complying with the code for use when disciplining and considering the dismissal of an employee. If this is not done, employers bear the risk of paying substantial sums in compensation to employees. The words of Justice Rattray in the Village Resorts judgment still ring true: "The relationship between employer and employee confers a status on both the person employed and the person employing. Even by virtue of the modern change of the nomenclature from master and servant to employer and employee, there is a clear indication that the rigidities of former relationships have been ameliorated by the infusion of a more satisfactory balance between contributors in the productive process and the creation of wealth in the society."

Employers and employees, know your legal rights and obligations. Take the time to read the LRIDA and the labour code. I promise you, it's well worth it.

- Trudy-Ann Dixon-Frith is an attorney with the DunnCox law firm in Kingston. trudy-ann.dixon-frith@dunncox.com