Business

Ending this business of courtrooms in corporations

Legal Notes

With Adrian Cotterell

Wednesday, December 12, 2018

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My colleague Jahmar Clarke wrote an article in this paper, entitled “This business of courtrooms in corporations”, highlighting some of the onerous procedural requirements for employers conducting internal disciplinary hearings. An award published on September 18, 2018 by the Industrial Disputes Tribunal (IDT) in the dispute between PA Benjamin Manufacturing Company Ltd and Mr Phillip Dwyer (“the Dwyer case”) has, to some extent, reined in employees and their representatives who wish to turn a simple disciplinary hearing into a murder trial in the Home Circuit Court.

Heavy weather has been made of an employee's right to “confront his accusers”. This term does not appear in the Labour Relations Code (LRC) which simply states that the worker must be given an opportunity to state his case. That is what natural justice is – being given a chance to be heard. The term 'natural justice' probably has far too expansive a definition in the minds of many employers, employees and perhaps attorneys and industrial relations consultants. Sometimes there simply aren't any accusers to confront.

Mr Dwyer was employed to PA Benjamin Manufacturing Company Ltd (the Company) where part of his responsibilities included driving the Company van to make various deliveries. One fateful day, Mr Dwyer, upon dropping off some goods at the company's warehouse, had an accident. While driving the van out of a loading bay, he caused the left side of the van to collide with a concrete wall. CCTV footage showed the incident, and also showed him inspecting the damage for almost 30 seconds. Mr Dwyer did not report the accident.

The following day, when a manager discovered the damage, he saw Mr Dwyer and another employee engaged in a discussion about the van. The manager asked Mr Dwyer if he knew anything about it. Mr Dwyer reacted with veritable righteous indignation and vociferously declared that the company was being irresponsible by letting too many people drive the van and expressed his disappointment that nobody was claiming responsibility for causing the damage. He continued along these lines in the company's front office in the presence of several of his co-workers, loudly declaring he didn't want anyone to think he caused the damage.

Eventually, the CCTV footage was discovered and Mr Dwyer was brought up on charges of dishonesty in relation to causing the damage, on account of his public profession of innocence and attempt at casting the blame on other employees. At the disciplinary hearing the company relied on several statements of the co-workers who witnessed Mr Dwyer's outbursts about his innocence. Mr Dwyer was adamant he would not answer any of the disciplinary panel's questions unless he was given his right to confront these employees whom he deemed to be his accusers. He insisted on being given the right to cross-examine them, in effect, turning the company's boardroom into a courtroom. The company refused to allow it, stating that the employees were not accusers but mere witnesses. Incidentally, these statements Mr Dwyer deemed as accusatory corroborated his own statement.

Mr Dwyer was terminated following the hearing and his appeal to a higher level of management was dismissed. The company found itself at the IDT even though it had followed the LRC to the letter. Mr Dwyer's industrial relations consultant, of course, argued that his right to confront his accusers was ignored by the company which, based on his argument, constituted a breach of natural justice. The IDT, in ruling that the termination of Mr Dwyer's employment was justifiable, found that the employees were not accusers, but merely persons who wrote what they had observed and that their statements and Mr Dwyer's statement were in sync about the fact that outbursts were made by him.

Had the IDT found that the employees who wrote statements were accusers, the decision would have likely gone the other way. The IDT agreed with the company's attorney who argued that there is an important distinction between witnesses and accusers. Also, implicit in the award is that there were no accusers in this case to be confronted in the first place. Several people witnessed the outbursts that gave rise to the disciplinary process. It would be absurd to categorise all these witnesses as accusers.

There is no rule in Jamaican employment law which requires the company to yield to an employee's demands to cross-examine witnesses. Similarly, the English cases explicitly state that many employers do not have the time, resources or wherewithal to conduct quasi-judicial proceedings in their establishments and the absence of such a style of proceedings is not inherently unfair.

There are obvious reasons why a company would not want to allow witnesses to be cross-examined where it is clearly unnecessary. It lengthens and unnecessarily complicates what is intended to be a simple and quick process, and sometimes, employees are badgered and asked inappropriate questions by the employee and/or the employee's representative. This award is extremely important for employers as well as employees. Though not expansive in its scope, it whittles away at the largely popular notion that a disciplinary hearing is essentially a trial by laypersons. This award is especially helpful for small businesses that may not have a large human resources team to coordinate an expansive trial-style disciplinary process.

As Jahmar Clarke pointed out, this business of courtrooms in corporations is a much broader issue than the confrontation and cross-examination of witnesses, and there is a pressing need for reform of the Labour Relations Code to strike a better balance between natural justice and economic and administrative costs and burdens.

Adrian Cotterell is an Associate at Myers, Fletcher and Gordon, and is a member of the firm's Litigation department (Labour and Employment Law Practice Group). He may be contacted at adrian.cotterell@mfg.com.jm or through the Firm's website www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.


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