Setting the record straight

THE EDITOR, Sir:

Egerton Chang, in an article published April 17, discussed the case of Chang v NHT reported at (1991) 28 JLR 495. In doing so, Mr Chang made some erroneous and/or misleading statements, and in the interest of historical accuracy and for the good of the National Housing Trust (NHT), which I represented in that case, I propose to set the record straight.

Mr Chang's first error was his statement that he had done "nothing wrong". This, when combined with his statement that he "won" the case, gives the impression that the court found he had done nothing wrong. In fact, the court accepted the evidence of the NHT and found:

"There being no evidence of dishonesty on the plaintiff's part, the critical issue is given the fact that the money was received and not paid over to the National Housing Trust, whether the plaintiff as the director of mortgage operations in failing to obtain prior approval from his immediate superior, Mr Peter Haley, the deputy managing director, that his conduct amounted to a breach of his fiduciary duty as was to be expected from that of a departmental head. This question, clearly in the light of Mr Haley's evidence, which was not seriously challenged, and is accepted, has to be answered in the affirmative.

Consider the facts

The conduct of the plaintiff may have been foolish and misguided. One should, however, consider the facts and not the labels. For a person who, to borrow the words of one manager, was "one of the finest management practitioners that it has been his experience to work with", is sufficient testimony to the level of the plaintiff's competence at the workplace. It is clear that in light of his conduct that the degree of confidence and trust that has to exist between the members of a management team to ensure that the organisational machinery of the trust functioned efficiently, this would have been gravely shaken by the incident to such an extent as to destroy that confidence."

It is regrettable that Mr Chang still does not appreciate that he was not entitled, without his employer's approval, to raise funds in the way he did, even if such funds, as he stated, were for a Christmas party for his division. The court found that his conduct amounted to breach of fiduciary duty, notwithstanding his laudable motives.

Second, Mr Chang, while heaping praise on his attorney, blames him for not leading evidence of damages. This is an unfair criticism of W.B. Frankson, QC, now deceased. In point of fact, the question of damages only arose because the judge, having found Mr Chang to be in breach of fiduciary duty, felt that dismissal was too harsh a punishment and that some lesser punishment would have been appropriate.

Whereas some may question whether it was appropriate for the judge to substitute his opinion of the appropriate punishment for such a breach, it is clear that the court was, in any event, unlikely to award damages for hurt feelings or all that suffering Mr Chang says he underwent. This is because the accepted position at that time was that damages were not awarded for hurt feelings for wrongful dismissal, Kaiser Bauxite v Cadien (1983) 20 JLR p. 168 (a decision of the Court of Appeal of Jamaica).

I trust readers will be better informed as to what Justice Bingham decided.

I am, etc.,

DAVID G. BATTS

Attorney-at-law