Mon | Aug 21, 2017

JSE regulator denied injunction ... Court defers to IDT hearings

Published:Sunday | May 21, 2017 | 5:00 AMMcPherse Thompson
Wentworth Graham, Chief Regulatory Officer in the JSE Regulatory and Market Oversight Division.
The Jamaica Stock Exchange building at Harbour Street, downtown Kingston.
Marlene Street Forrest, Managing Director of the Jamaica Stock Exchange.
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The Supreme Court has refused to grant an injunction barring the Jamaica Stock Exchange Limited (JSE) from convening a disciplinary hearing against its chief regulatory officer, Wentworth Graham, pending the outcome of proceedings at the Industrial Disputes Tribunal (IDT) over his alleged suspension.

Justice Vivene Harris agreed with the JSE's attorney, Patrick Foster QC, who argued that the issue is now before the IDT and it is up to the tribunal to determine whether Graham was suspended, and if so, whether the suspension was justified.

The hearing before the IDT is set for September 19.

Graham works with the JSE Regulatory and Market Oversight Division (RMOD), and reports directly to the JSE's regulatory committee, which is chaired by Livingstone Morrison. The JSE is contending that he was not suspended but sent on administrative leave.

As laid out in the case before the court, the JSE regulator and his bosses have been in dispute since last year.

 

ENFORCEMENT ACTIONS THREATENED

 

On November 16, 2016 Graham wrote to Marlene Street Forrest, then the general manager, taking issue with the JSE's consolidated audited financial statements for September 2016 quarter. JSE is subject to RMOD oversight as a listed company on its own exchange.

Graham stated that the shareholding lists for the JSE's directors, senior managers and their connected parties were inaccurate and an amended report was required. He also indicated the consequences of failing to submit an amended report - that the RMOD would treat the financial statements as non-compliant with the terms of JSE Rule 407 - Quarterly Financial Statements "which could result in other enforcement actions".

Street Forrest requested clarification, and Graham responded by directing her attention to the relevant rule, and indicating that the shareholdings of all directors, senior managers and their connected parties, even when they have zero holdings, must be disclosed in the quarterly financial statements.

The general manager disagreed with Graham's interpretation of Rule 407, as did Morrison, who also expressed concern about the tone of the correspondence from Graham to Street Forrest and another senior manager.

A meeting was held between Graham and Morrison, and according to the judge, it would appear that it was decided there would be no need for the JSE to amend its quarterly financial statements.

However, on December 12, Graham circulated the JSE monthly regulatory report, which was due for publication three days later, indicating that the JSE was non-compliant with Rule 407.

Street Forrest objected to the report and questioned Graham's "efficacy" in his capacity as chief regulatory officer. Graham responded demanding an apology as he felt that the remark was damning to his office and his image.

According to the judgment issued Thursday, Street Forrest penned a letter to Graham

on January 13, 2017, which contained a number of concerns about his relationship with staff, performance and other issues relating to the discharge of his duties. It was alleged that those factors had led to a loss of confidence in him and the erosion of their relationship as employer/employee.

 

DENIED ACCESS

 

Graham was subsequently invited to a meeting to determine if a "mutually agreeable settlement" could be reached, to which he indicated his willingness to participate in the discussions provided that the settlement involved the retention of his position and job at the JSE.

When he showed up for work on January 19, he was denied access and advised by letter from Street Forrest that the JSE would be holding a disciplinary hearing.

His attorneys then referred the matter to the Ministry of Labour, saying Graham was suspended and that it amounted to constructive dismissal. After some reluctance, the labour minister referred the matter to the IDT on March 21.

On April 24, Graham filed a claim in the Supreme Court seeking a declaration safe-guarding his job and an injunction restraining the JSE from holding disciplinary hearings pending the outcome of the IDT review.

Foster said the JSE has always maintained that Graham was placed on administrative leave until the matters concerning his employment were aired, whether through discussions or a formal disciplinary hearing.

Justice Harris agreed with Foster that the court could not, in concurrent proceedings, determine whether Graham was suspended as that could lead to the anomaly of the court ruling one way and the IDT another, resulting in inconsistent or contradictory decisions.

She said a determination whether Graham should return to work is for the IDT to decide.

Justice Harris refused the injunction, but ruled that the JSE should continue to pay Graham his full salary and emoluments until the outcome of the dispute regarding his alleged suspension and, prospectively, the outcome of the disciplinary proceedings.

Graham's attorney, Georgia Gibson-Henlin, QC, has filed an appeal against Justice Harris' ruling.

mpherse.thompson@gleanerjm.com