Fri | Oct 19, 2018

IDT hearing in JSE regulator's 'suspension' pushed back

Published:Sunday | September 24, 2017 | 12:00 AMMcPherse Thompson
Wentworth Graham, Chief Regulatory Officer in the JSE Regulatory and Market Oversight Division.

By a majority decision, the Court of Appeal has upheld a lower court's refusal to grant an injunction barring 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.

Graham was suspended in January this year.

The IDT hearing was set to begin last Tuesday, September 19, but it has been adjourned to an undetermined date for clarification of the terms of reference, at the request of the JSE. There is no bar to the JSE now undertaking the disciplinary hearing based on the Court of Appeal ruling.

On April 24, Graham filed a claim in the Supreme Court seeking a declaration safeguarding his job and an injunction restraining the JSE from holding disciplinary hearings pending the outcome of the IDT review, but that was refused and he appealed.

Court of Appeal Justice Jennifer Straw and Justice Frank Williams sided with the Supreme Court, while Justice Almarie Sinclair-Haynes dissented, according to the written decision handed down this week.

Justice Straw noted that it is a feature of the case that a decreased level of trust and confidence existed between Graham and the JSE at the time of the alleged 'suspension' - a situation disputed by his attorney Georgia Gibson-Henlin, QC - and may represent a rational basis for holding a disciplinary hearing.

The court noted that in a December 2016 letter sent to Graham he received commendation for the quality of his work. But the JSE's expressions of gratitude for his "hard work and contribution which positively impacted the company's excellent performance for 2016" transformed that same month to questions being raised about his "efficacy".

This drastic transformation, it said, seemingly coincided with Graham's persistence in requiring the JSE to submit an amended report for the shareholding of its directors, senior managers and their connected parties. Graham's letter, which apparently incurred the wrath of his superiors

and resulted in their swift and sudden diminished view of his performance, was addressed to Marlene Street-Forrest, dissenting Justice Sinclair-Haynes noted.

Justice Straw also noted that then JSE general manager Street-Forrest, now managing director, in an affidavit, deponed that the letter commending Graham was one "sent to all staff members in recognition that as a team all were instrumental in making the JSE successful in attaining its overall targets".

Whether those are indicative of genuine or substantive issues is an issue to be canvassed by the IDT, Justice Straw said.

However, agreeing with submissions by JSE attorney Patrick Foster, QC, she said that from a strictly procedural standpoint, there is no statutory or other basis to conclude that the disciplinary process should not proceed in a timely matter.

In her written dissent, Justice Sinclair-Haynes said although Supreme Court Justice Vivene Harris acknowledged there were serious issues to be tried, she did not give sufficient weight to the relative strength of Graham's case should the injunction turn out to have been wrongly granted or withheld.

She said that in determining the course that would result in the least irremediable harm, Justice Harris failed to properly balance the scales, and that her concentration was solely on the likely prejudice to the JSE.

Justice Sinclair-Haynes said the issue which ostensibly culminated in Graham's 'efficacy' being questioned by Street-Forrest, other managers/directors of JSE, the company, and their connected parties, was his insistence that the JSE submit a report for their shareholdings, even if it was zero.

She also noted Graham's complaint that Street-Forrest, who is not an independent party, was the only communicator with the panellists for the disciplinary hearing.

Furthermore, she said, the JSE failed to act with the necessary celerity in convening the disciplinary hearing, whereas Graham not only triggered the proceedings under the Labour Relations Act quickly, those proceedings had also overtaken the need for a disciplinary hearing.

Justice Sinclair-Haynes said the unchallenged evidence was that the disciplinary hearing had not commenced, that Graham was merely invited to have discussions, he took quick steps to have the matter heard and therefore ought not to be penalised.

"In my view, in failing to restrain the JSE from proceeding with the disciplinary hearing, the learned judge (Harris) erred," she said.