BOJ still mulling IDT $50-m compensation award

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BOJ still mulling IDT $50-m compensation award

BY BALFORD HENRY
Senior staff reporter
balfordh@jamaicaobserver.com

Wednesday, February 26, 2020

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BANK of Jamaica (BOJ) top executives are still reviewing last week's $50.2-million award to a former colleague by the Industrial Disputes Tribunal (IDT), for his “unjustifiable dismissal” in 2018.

BOJ Governor Richard Byles would only reveal Monday that the bank is still reviewing the award, which was delivered last week Monday, and would respond soon.

“It has to be discussed internally. It is under consideration and is being discussed internally before we can make a response, but it will be done very soon,” Byles told the Jamaica Observer.

Karim Kiffin, former head of the BOJ's transitory Strategic Planning and Project Management Centre, was employed by the bank on December 1, 2017 on a five-year contract effective January 3, 2018. However, the contract ended five months later, on May 31, 2018, and his appointment was terminated.

Kiffin protested his dismissal and retained an attorney to represent him in a claim of unjustifiable dismissal. The Ministry of Labour and Social Security intervened, but after conciliatory talks broke down the matter was referred to the IDT by Minister Shahine Robinson.

Kiffin's arbitration team comprised trade unionist and industrial relations consultant Senator Lambert Brown, who joined attorneys Ronald Young and Natalia Casado Desulme in seeking compensation of $113 million for outstanding sums remaining on his five-year contract. In the end, this was rejected by the IDT. However, the $50.2-million award is seen as one of, if not the heaviest award to any single claimant.

An all-female division of the IDT — comprising retired Supreme Court judge Justice Marjorie Cole-Smith, chairman; human resource specialist Jacqueline Irons; and former senior director of conciliation at the Ministry of Labour and Social Security Chelsie Shellie Vernon — awarded him more than $50 million in compensation, after finding that there was no evidence that he failed to perform.

They concluded that, based on the evidence submitted to the panel, the dismissal of Kiffin was unjustifiable.

The BOJ's lawyer, Patrick Foster, said that the bank had employed Kiffin as head of the Strategic and Project Management Centre, which was being developed as an interim measure, subject to periodical reviews that would ultimately determine whether it would be temporary or permanent.

There were no permanent staff members engaged in the project, apart from Kiffin, who was engaged on a fixed-term contract, except for a special projects manager who were working with the bank prior to the concept of the management centre. Both Kiffin and the special projects manager reported to a deputy governor.

Clause 2 of Kiffin's contract of employment provided that, prior to the expiry date, either party may terminate the contract by giving one month's notice in writing, but no notice of termination would be needed in the case of a serious breach of the agreement.

However, sometime after his employment a decision was taken to restructure the centre, and the focus changed to training in information technology. The bank felt that there was no further need for Kiffin's presence as he did not meet this requirement. The bank terminated his employment on May 31, in keeping with clause 2 of the contract, which provided for termination by either party with one month's notice prior to the expiry of the contract.

The bank said Kiffin's position did not qualify for redundancy, having not reached the statutory threshold for payment under the Employment Termination and Redundancy Act (ETRA), which requires 104 weeks' employment.

The bank also said that there being no allegations of misconduct or poor performance against Kiffin, it exercised its “contractual right” under clause 2 of the ETRA and terminated his contract in accordance with the provisions for termination. His functions were subsumed into another post and a new position established.

The bank insisted that in all circumstances it did exercise its right to terminate Kiffin's engagement in accordance with clause 2 of the contract and, therefore, acted lawfully in the circumstances.

The IDT panel said that after careful examination and assessment of the evidence adduced by both parties, it needed to determine whether the decision by the bank to dismiss him resulted from the restructuring exercise, which led to his position no longer being required.

The panel said that it acknowledged the bank's right to restructure and reorganise as it deems fit, however, it felt that the dignity of Kiffin's job was not appreciated.

“They have a right to change work processes and introduce new ones where necessary, and to manage the business of the bank in the most efficient way possible,” the panel admitted.

The panel further said it could condone the assertion by the BOJ that Kiffin's position could be terminated due to the restructuring exercise, without recognising the security of employment provided under section 3(4) of the Labour Relations Code/Labour Relations and Industrial Disputes Act.

The panel, nevertheless, found that Kiffin was not afforded “the dignity he had a right to” under the code, which states that “recognition is also given to the fact that work is a social right and obligation, it is not a commodity: It is to be respected and dignity must be afforded to those who perform it, ensuring continuity of employment, security of earnings, and job satisfaction”.

However, it accepted that some of the benefits which he was seeking in his $113-million claim were not available to him, as these were either reimbursements payable only on the basis of actual invoices or receipts, while other allowances are only applicable to employees after a year of permanent service.

On that basis the panel dismissed Kiffin's claim for compensation of $113 million for outstanding sums remaining on his five-year contract, and awarded him $50.2 million instead.

Secretary to the IDT division was Royette Creary.


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