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Court rules against fired UTech worker

Published:Wednesday | April 28, 2010 | 12:00 AM

Barbara Gayle, Staff Reporter

Supreme Court judge Ingrid Mangatal has quashed a ruling of the Industrial Disputes Tribunal (IDT) that an employee of the University of Technology (UTech) who went on vacation leave without permission should be reinstated.

UTech had applied to the court for an order to throw out the IDT's ruling on grounds that its decision was unreasonable.

The case involved Carlene Spencer, a laboratory technician at UTech, who went on unauthorised vacation leave for 34 days from June 5, 2006 to July 31, 2006. Spencer did not complete an application form for vacation leave and failed to comply with the approval process.

UTech argued that Spencer had discussions with her supervisor, Michael Bramwell, about taking leave. Bramwell told her that he would approve her leave if Raymond Martin, the lecturer with responsibility for the laboratory, first approved the application. No further discussions took place about the leave.

On June 7, 2006, it was discovered that Spencer was absent from work for more than two days. Following unsuccessful attempts to contact her by telephone, Bramwell took the unapproved leave form to the Human Resources Department to advise that Spencer had proceeded on leave without prior approval.

Grounds for dismissal

Spencer was expected to return from the unauthorised vacation leave on July 21, 2006, but she did not. On July 24, a coworker received a telephone call indicating that Spencer was ill. She did not return to work until August 3, 2006, and presented medical certificates for the period July 24-28 and July 31-August 4.

Under UTech's disciplinary code, unauthorised absence from work for a period of at least five consecutive days is grounds for dismissal. Spencer admitted that she got the medical certificates because she had been informed by a co-worker that management had an issue with her leave.

Spencer was suspended from work and duly charged with unauthorised absence from work for a period of 34 days. Her union, the University and Allied Workers Union (UAWU), made allegations that UTech had not followed the proper procedure in administering discipline.

The union wrote a letter to the Ministry of Labour requesting its intervention in the dispute. The ministry invited UTech to attend a non-binding conciliation meeting to discuss the matter but the talks were set for a date after the scheduled disciplinary hearing.

On April 3, 2007, a tribunal constituted under UTech's disciplinary code heard evidence in the matter and recommended that Spencer's services be terminated by month end. Spencer and the union did not attend that hearing.

IDT ruling quashed

The UAWU took the issue to the IDT, claiming that Spencer was unfairly dismissed. The IDT found that the dismissal was unjustified and ordered her reinstatement and compensation wage payment.

UTech, which was represented by attorneys-at-law Gavin Goffe and Alexis Robinson, instructed by Myers, Fletcher & Gordon, took the matter to the Supreme Court, which handed down a ruling on April 23 quashing the IDT's ruling.

The judge ordered the IDT and the UAWU to pay UTech's legal costs.

"The IDT cannot consider the question of the fairness of the dismissal in splendid isolation from the matters considered by the employer or known to him up to the time of the dismissal," the judge said.