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IDT backs Nestlé's disciplining of employees for 'wilful fraud'

Published:Sunday | August 17, 2014 | 8:00 AM
Attorney Kwame Gordon -File

Barbara Gayle, Justice Coordinator

A company can bring disciplinary proceedings against employees for 'wilful fraud', the Industrial Disputes Tribunal (IDT) ruled this month when it had a hearing to settle a dispute arising from the dismissal of two employees by Nestlé Jamaica Ltd.

Attorney-at-law Kwame Gordon, who represented the company, disclosed that although wilful fraud was not defined in the company's service rules, the IDT found that it was capable of a definition.

He said the IDT used the dictionary to get a definition.

The dispute involved two hourly paid workers who left work before the time they were rostered to leave at 10 pm. However, based on the time recorded from a direct swipe of their identification cards on the automated time management system (KRONOS), which is linked to the payroll system, they were paid for working until 10 pm.

Jomo Gallimore, who left work at 7:45 pm on August 25, 2012, and at 8:35 pm on September 25, 2012; and Pearlina Palmer, a union delegate who left work at 8:35 on July 6, 2012, received full pay based on the system.

Palmer and Gallimore said they had their swipe cards with them at all times.

The company conducted investigations and charged them with wilful fraud. Disciplinary hearings were held, and they were fired in November 2012.

A group of workers went on strike and, on November 16, 2012, the minister of labour and social security referred the dispute to the IDT for a settlement.

The National Workers Union, which represented the workers, challenged the charge under which they were fired. It was argued that although the offence of wilful fraud was in the company's service rules, there was no definition for the offence, and the union and the company had never agreed on a definition.

NO INTENTION TO RETURN

The company submitted that Gallimore collected money unlawfully without the intention of returning it. There was a calculated attempt by Palmer to receive money for a period when she was not at work, the company argued.The company said the charge was correct because the cards were swiped to give the impression that the workers were still on the premises at 10 pm.

In response to the union's challenge to the charge, the IDT said it had to determine whether the charge of wilful fraud was applicable in dismissing the workers, and had to give a definition for the term. The IDT held that "according to Collins Cobuild Advanced Dictionary, the word 'wilful' means actions that are done or expressed deliberately, while 'fraud', on the other hand, is the crime of gaining money by deceit or trickery".

The IDT held that the workers' cards were swiped at 10 pm, when they had left work before that time; therefore, the charge of wilful fraud was appropriate.

The union said Gallimore did not get a fair hearing because its delegate was not presented with certain evidence until close to the end of the hearing. It said it expected another hearing and was shocked when it heard that Gallimore was fired. The union said Palmer got permission to leave early on the day in question, and Palmer indicated that she did not claim for hours not worked, and if the evidence had shown she was paid, she would have made a refund. The union asked for the workers to be reinstated. The union said a lesser charge should have been brought against them.

In handing down its decision this month, the IDT found that the KRONOS system was not malfunctioning at the times in question. The IDT held that in Gallimore's case, the rules of natural justice were breached because the person from the company who laid the charges against him was the chairman of the disciplinary meeting and the person who signed the dismissal letter.

The IDT said Gallimore's dismissal was unjustifiable; however, it had to be tempered in consideration to Gallimore's contributions to the company's actions. It was ordered that Gallimore should be reinstated by August 14 and given 25 weeks' pay. If there is a failure to reinstate him by August 14, then he should be paid compensation of 39 weeks' basic pay.

The IDT ruled that Palmer's dismissal was justifiable.