Court orders NCB worker reinstated
The Supreme Court has upheld a decision of the Industrial Disputes Tribunal, IDT, that an employee of National Commercial Bank, NCB, who was dismissed five years ago be reinstated in her employment with the bank.
Justice Kirk Anderson also sided with the IDT that the blurring of the lines between investigation and disciplinary procedure of the bank, whereby some of the same persons were involved in both processes, indicated a departure from appropriate labour relations.
The court ordered that the employee, Suzette Smith, who was employed to NCB’s Manor Park branch in St Andrew, be paid all salary from the date of termination of her employment up until the date of her actual resumption of work, or the date of her reinstatement.
According to the judgment recently handed down by the Supreme Court, NCB offers a limited number of tertiary scholarships to children of its employees, one of which Smith obtained for her son to study at the then Caribbean Maritime Institute, CMI.
The tuition for her son was $294,437.31 per year and NCB offered to pay 80 per cent, or $235,549.85.
On September 29, 2014, an audit was done of deposits of the bank account of all its staff members at the Manor Park branch, and the bank’s auditors discovered that $50,000 was deposited to Smith’s account, which was not properly accounted for.
Further investigations revealed that the money was deposited into her account with the assistance of two other staff members, one of whom was her supervisor.
The three staff members were subsequently suspended and disciplinary hearings conducted on October 29, 2014, by Jacqueline Mighten, manager at the Manor Park branch, and Charmaine Oudith, service quality manager.
Smith’s sanction arising out of the disciplinary proceedings was the termination of her employment, effective November 17, 2014, while the two other employees were each suspended for one week without pay.
The NCB Staff Association subsequently pursued a meeting with the review board, as it was of the view that the sanction against Smith was unduly harsh. However, the review board upheld its decision to terminate Smith’s employment.
The staff association then requested that the matter be referred to appeal in accordance with NCB’s disciplinary policy.
The appeal was heard on June 17 and 30, 2015, and presided over by Dr Noel Cowell, who was independent of the respective parties.
Cowell concluded: “I find that the reasonableness of the decision to dismiss the employee cannot be sustained in the context where mitigating factors cloud the issues and reduce the degree of certainty that she intentionally and premeditatedly set out to breach important bank regulations.”
Smith’s explanation was that she had reimbursed herself from the bank funds because she had made a payment of $47,620 to CMI to cover the cost of her son’s auxiliary fees for his intended studies for the then upcoming school year.
She said she had made the payment to CMI before her having been awarded the scholarship and felt that, in the circumstances, she was entitled to a reimbursement.
Cowell made the determination that Smith ought to have been sanctioned to the same extent as the other two culpable employees. However, the bank rejected his opinion.
The NCB Staff Association subsequently took the matter to the Ministry of Labour, which referred it to the IDT.
The IDT concluded that the disciplinary proceedings in respect of Smith were flawed in that Mighten, who signed the letter preferring charges against her, had also chaired the first disciplinary meeting and had recommended termination of employment.
Oudith, who led the investigation conducted by the bank, had also been one of the two persons who adjudicated Smith’s case. Euton Cummings, in his capacity as assistant general manager, after considering the report of the first disciplinary hearing, had submitted to the group managing director the recommendation to terminate Smith’s employment.
Cummings had earlier served as the chairman of the review board. It was therefore the IDT’s view that a review of that nature ought not to have involved an individual who was integrally involved in the decision-making process.
According to Justice Anderson’s judgment, the IDT ordered that Smith’s employment be reinstated. However, NCB filed a claim in the Supreme Court seeking to quash the IDT’s decision instead.
The judge noted that Smith had, up until the time of her dismissal, worked with NCB for 12 years and was entitled to six weeks’ notice, which was not granted.
The IDT took the view that the disparity in sanctions in suspending the other two employees for two weeks and terminating Smith was materially unfair.
Justice Anderson, in declining to overturn the IDT’s decision, said the tribunal’s decision-making process has not appeared to be arbitrary, uninformed and illogical, but rather, appears to have been consistent with the findings of a reasonable adjudicator and has not been based on any palpable, if any, error of law.
The judge ordered that Smith’s employment with NCB be reinstated with effect from November 17, 2014.
Neither the staff association nor Douglas Leys, QC, who represented them, was reached for comment.
The lawyer for NCB, Andre Earle, said he has no instructions regarding an appeal, but referred further queries to NCB spokeswoman Nicole Brackett Walters, who is yet to comment.