Edwards dumps solid waste

Former Executive Director wins dismissal case against NSWMA

BY HG HELPS
Editor-at-Large
helpsh@jamaicaobserver.com

Sunday, May 20, 2018

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FORMER Executive Director of the National Solid Waste Management Authority (NSWMA) Jennifer Edwards is to be paid three years' salary and emoluments after she was “unjustifiably” dismissed by the Government agency in 2015, the Industrial Disputes Tribunal (IDT) has determined.

Edwards, who first took her dispute with the NSWMA to the Ministry of Labour, and then to the IDT after she was severed from the agency in March 2015, is to be paid the three years' basic salary to cover the period from February 27, 2015 to February 26, 2018. She is also entitled to pay in lieu of vacation leave that she would have earned for the same period.

The award was made by the IDT on May 9, 2018. It did not award interest since it does not have the authority to do so. The Tribunal hearing the matter comprised Chairman Charles Jones, and members Errol Beckford and D Trevor McNish.

The IDT made no ruling also to claims for motor vehicle upkeep and laundry allowance. Although it was not stated in the findings, Edwards at the time was earning around a $5.1-million annual basic salary, which means that she would walk away with over $15 million in compensation.

The NSWMA was represented by attorney-at-law Lackston Robinson and legal officer Tova Hamilton, while Edwards was represented by Industrial Relations Consultant Senator Lambert Brown.

It is still uncertain as to whether or not the NSWMA will contest the decision.

Edwards, a one-term Member of Parliament for St Catherine South Western who serves as President of the People's National Party's Women's Movement, was employed as Executive Director on a three-year contract on February 27, 2012, two months after the PNP won the General Election of December 2011. The contract expired on February 26, 2015, with Edwards continuing to perform her duties as Executive Director.

The facts outlined before the Tribunal were that Edwards was employed by the NSWMA on a “fixed-term” contract that ended on February 26, 2015. She continued to operate as Executive Director, consistent with the terms of the expired contract, although she did not hear from the NSWMA's Board about her employment status.

She was, however, written to on March 18, 2015 by chairman of the board, K Steve Ashley, telling her that a decision had been taken to offer her a one-month contract which would expire on March 26, 2015.

Evidence presented before the Tribunal, which sat to hear the matter 17 times between April 4, 2017 and January 31, 2018, stated that Edwards did not accept the one-month extension, and Ashley wrote to her advising her that “based on discussions” at a board meeting, her services would no longer be required after March 26, 2015.

It was then that Edwards took the matter further.

The Tribunal in its findings, a copy of which was obtained by the Jamaica Observer, said that “neither prior to the ending of the contract nor at the end of the contract, was Edwards contacted by the NSWMA regarding her employment status.

“Discussions were held with various persons and bodies with a view to settle the matter, but with no success. As a result, the Ministry of Labour has referred the matter to the Industrial Disputes Tribunal for determination and settlement,” the Tribunal stated.

According to the Tribunal's findings, the evidence presented showed that the NSWMA knew before February 26, 2015 that Edwards' contract would have expired, when the NSWMA's Corporate Services Director wrote to the Human Resources Manager to instruct that gratuity and other emoluments due to Edwards be paid to her.

In response to that pending issue, the Tribunal stated that on February 24, 2015, the company's Human Resources Manager Chelsie Shellie Vernon wrote to the Financial Director stating the following:

“Please see attached, memorandum dated February 23, 2015, from the Director of Corporate Services giving instructions to prepare gratuity and other emoluments for the Executive Director, Ms Jennifer Edwards.

“In this regard, the Human Resource Department is requesting that the following be done:

(1) Salary payment for the period February 1-26, 2015;

(2) Payment in lieu of 40 days vacation leave earned and not taken for the contract period;

(3) Gratuity calculation for the period February 27, 2014 to February 26, 2015 (terminal gratuity on 40 days vacation leave to be included)”

The IDT said that such evidence demonstrates that “the NSWMA was at all material times aware of the fact that Ms Edwards' contract would have expired on February 26, 2015. The NSWMA had a duty to address this matter and did not. Therefore, the blame cannot now be placed at the feet of Ms Edwards.

“A detailed description of the functions and duties that Ms Edwards continued to perform from February 27 to March 26, 2015 ... indicates to the tribunal that the NSWMA accepted that Ms Edwards was an employee and assigned her duties which she carried out accordingly.

“It is submitted by Ms Edwards that a renewed contract had come into being on February 27, 2015, pursuant to Term (4) of the expired contract, which states the following:

“Terms of Engagement”

(4) Renewal of this contract while not automatic will be subject to the requirement for the continuation of service.”

“This is interpreted to mean that the contract will be renewed providing there is the requirement for continuation of services. The conduct of the parties, in this regard, leads the Tribunal to the conclusion that there is merit to this submission. After the expiration of the contract, Ms Edwards performed her normal duties with the acquiescence of her employer, the NSWMA. Even more, when the NSWMA offered her a one month contract 21 days after the 26th February 2015, she refused to accept it and without demur, the NSWMA allowed her to continue in the performance of her normal duties. The evidence indicates that there was 'the requirement for the continuation of service' and Ms Edwards was providing that service through the performance of her normal duties.

“The Tribunal also finds persuasive the following passages quoted from the Australian case by the Western Australia Industrial Relations Commission in 2017, case of Steve Burke Transport Pty Ltd v Toll Transport Pty Ltd:

' Parties who have made an express contract to be in effect for one year (or any other stated time) frequently proceed with performance after expiration of the year without making any new express agreement of extension or otherwise. From such continued action a court may infer that the parties have agreed in fact to renew the one-year contract for another similar period.

“Another useful authority,” the Tribunal stated “cited by Corbin, Steed v Bushy, the Supreme Court of Arkansas, having stated that in determining whether 'tacit' but actual contract exists, the prior course of dealing between the parties is to be considered, went on:

When an agreement expires by its own terms, if without more the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old, and the existence of a new contract is determined by an 'objective' test, that is) whether a reasonable man would think, from the actions, that they intended to make a new binding agreement. In such a case, when the parties continue to do business together, their conduct may permit, or even constrain, a finding that they impliedly agree that their rights and obligations should continue to me measured as provided in the old contract (New Tork Telephone Company v Jamestown Telephone Corp)'.

The NSWMA's lawyers had asked the Tribunal to dismiss the claim on the basis that Edwards' contentions were erroneous and unsustainable, suggesting that there was a binding one-month contract between Edwards and the NSWMA from February to March 2015.

The Tribunal found that there was no valid one-month contact between Edwards and the NSWMA between February and March 2015.

It said that no evidence was put forward by the NSWMA that the organisation engaged staff on a one month contract basis.

The Tribunal ruled that the dismissal was in contravention of the Labour Relations Code under Section 22, as Edwards was not subject to due process before her contract was terminated by letter dated March 18, 2015 from Board Chairman Ashley — like Edwards a high-profile PNP member — who did not give evidence before the Tribunal.

The Tribunal also lashed the NSWMA board over the handling of the matter of Edwards' termination.

“Ms Edwards served this body for three years and, as the evidence indicates, her tenure was unblemished and she received various commendations. To have heard through the media that her contract of employment was being terminated, in the Tribunal's view, is poor human and industrial relations practice not to be condoned, the more from a State body. The Labour Relations Code, passed in the Parliament in 1976, provides which, in the opinion of the Government, are helpful for the purpose of promoting good labour relations practices.

“It is noteworthy that, as the evidence suggests, not one member of the NSWMA board or management found it necessary to discuss with Ms Edwards the matter of her employment status on a face-to-face basis. While Board members are not human resource experts it is important that they utilise the expertise of the personnel in the Human Resources Department who are trained in the application of the Labour Relations Code.”

At the time of Edwards' removal as executive director, there was a growing rift between Ashley and herself. After the non-renewal of her contract, she started an initial move to have the matter heard in court. Information reaching the Sunday Observer stated that then Minister of Local Government Noel “Butch” Arscott had suggested that the matter could have been settled outside of court. However, a change of Government in February 2016 crashed that plan.

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