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Lessons in reasonableness

Canute Thompson, PhD

Sunday, August 13, 2017

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Two recent judgements by the United Kingdom-based Privy Council, which were first heard by the Industrial Disputes Tribunal (IDT), provide important insights into the Labour Relations and Industrial Disputes Act (LRIDA) and the meaning and importance of reasonableness. The lessons of these judgements should not be lost on employers, including the Government.

The two cases are National Commercial Bank (NCB) versus the IDT, and the University of Technology, Jamaica (UTech) versus the IDT. Both rulings were handed down in July 2017.

In my assessment, there are four key lessons from both rulings, namely that:

(a) The IDT is not merely an appeals tribunal restricted to determining whether the process used by an employer in terminating the services of an employee were fair; the IDT is a body with an original jurisdiction empowered to conduct its own hearing and to determine not only if processes were fair, but also whether a decision was justified.

(b) An employee's livelihood (job) — like his/her liberty and life — is part of his or her property. In the same way that the State cannot lawfully take away a person's liberty or life without due process, an employer cannot lawfully take away a person's job capriciously or high-handedly, simply because it was issued by the employer in the first place.

(c) The established grievance and disciplinary procedures that an organisation has in place are not beyond the reach of the IDT, regardless of how well-entrenched they are. If the IDT finds that those procedures breach the principles of natural justice, no action taken using those procedures can stand.

(d) The LRIDA, in fact, shields the IDT from having its decisions overturned, except on a point of law. This means that no court, not even the Privy Council, can interfere with a decision of the IDT based on the IDT's interpretation of facts, or determine what facts the IDT should have taken into account in deciding a matter.

Let us examine both cases and the rulings to see the contexts of these important lessons.

NCB vs the IDT

This case started out as Jennings versus NCB. Jennings was employed at NCB for 33 years. Sometime in 2014 he was accused by the bank of approving four loans totalling just over $48 million, which turned out to be bad loans. The bank terminated his services. The process by which his services were terminated raised questions for the IDT. Jennings was instructed one evening to appear before a panel the following morning to answer charges of dereliction of duty. The panel included his immediate supervisor, his supervisor's supervisor, and the bank's lawyer. The charges against him were drafted by his supervisor. Jennings was not represented, as employees at the level of manager in the bank are not unionised.

In its ruling, the IDT found, among other things, that:

(1) The notice given to Jennings was not adequate, as he was given only a couple of hours' notice.

(2) The said persons who laid the charges against him were the same persons who tried him. (While this method is consistent with the bank's disciplinary procedures, the IDT held that such a procedure breached a sacred principle of due process, namely that a person cannot be a judge in his own cause.)

(3) The decision to terminate Jennings' service was unjustified, having regard to all the facts of the case.

The bank challenged the decision of the IDT at the level of the Supreme Court and lost. The bank took the matter to the Court of Appeal and later to the Privy Council on both occasions. Thus the ruling of the IDT that NCB should pay Jennings 220 weeks of salary is final.

Among the arguments advanced by NCB before the court was that the IDT erred when it found that the decision to terminate Jennings was unjustified, contending that such a determination was outside the remit of the IDT. Both the Supreme Court and the Court of Appeal disagreed with the bank.

UTech vs IDT

This case is beautifully summarised in the opening paragraph of the judgement, and captures the salient questions, namely:

(a) whether the “IDT can take into account matters of which the employer was unaware at the time of the dismissal…” of an employee; and

(b) whether the IDT “can form its own judgement (concerning) whether in light of all the information available, the dismissal was justifiable...”

The facts here are complex, but essentially concern whether the employee had permission to be absent from work. The evidence shows that the employee had applied for vacation leave a month in advance and submitted her application to her supervisor who had not signed the form until after she had already proceeded on leave. This signing was done when the supervisor took the form to the Human Resources Department and asked what he should do with it. In addition, the employee was absent from work for two discrete periods after her vacation leave, but these periods were covered by applications for sick leave which she made accompanied by medical certificates. The employee was initially suspended pending an investigation. The union took the matter to the Ministry of Labour and, while the matter was pending before the Ministry, UTech amended the charges and held a disciplinary hearing resulting in the termination of the services of the employee.

Now I am aware that some employees can be slick and some abuse leave provisions of the organisation. I am not suggesting that this was what occurred in this case. But the key issue is that the IDT, in its ruling, held that given the facts of the case, including issues of which UTech was not aware at the time it dismissed the employee, the decision to terminate was unjustified. UTech, on the other hand, contended that, given what it knew at the time of its decision to terminate, the decision was justified, and as such the IDT ought not to have interfered with the decision.

The binding judgement of the Privy Council is that:

(a) the IDT has the authority to determine whether an employer's decision to terminate the services of an employee is justified; and

(b) the IDT in making a ruling has the authority to take into account facts of which an employer may not be aware at the time the employer made its decision.

The law, reasonableness, and intellectual honesty

Both employees and employers owe it to themselves and each other, as well as to their organisations and the wider society, to be reasonable. We all need to be reasonable with each other. Reasonableness is so central to business and human interactions that a large body of knowledge (specifically administrative law) is built upon it. The doctrine is located in the body of knowledge known as Wednesbury's law, which defines what constitutes an unreasonable decision. The thinking has evolved to be framed as one in which unreasonableness is a decision that is so outrageous and irrational that no right-thinking person or tribunal would make such a decision. Thus, in everyday relationships, and in the practice of the law, reasonableness is vital.

Yet, despite the importance of reasonableness in interpersonal and legal dealings, lawyers often find themselves trying to make out, on behalf of their clients, that self-evidently unreasonable acts are reasonable. The queer thing is that if the client whom a lawyer represents were on the other side, the said lawyer would argue the opposite. Thus, if Jennings had retained the lawyers retained by NCB, although the facts would remain the same, they would argue the opposite of what they had fought all the way to the Privy Council.

This issue raises the question of intellectual honesty. Intellectual dishonesty may very well be an occupational hazard of the legal profession. That this may be so exposes the larger question of the kind of society we wish to create and, more subversively, the kind of human being and professional that one is.

Is there a role for a lawyer to advise a client that his or her case is without merit? Does the expenditure made by the bank in fighting the decision of the IDT tell us anything about the values (the soul) of the bank?

Imagine what it would mean for employees if it were legally permissible for an employer to give an employee less than 24 hours' notice to appear before a panel to defend him or herself, unaided and unaccompanied, and tried by the same people who charged him or her with wrongdoing. It would mean that every employee is at risk.

Imagine what it would mean if it were deemed reasonable in law for an employer to dismiss an employee at will on some pretext using due process, and all that the IDT could do is to examine whether proper procedures were followed without reference to whether the decision was justified.

These recent rulings are clarion calls for reasonableness in the workplace. What the judgements mean is that if employers do not put proper procedures in place, and act reasonably, there is recourse through the labour laws for employees to seek redress, which is a far less expensive route than the court. The framers of the LRIDA have left a firewall of protection for workers, and these two rulings of the Privy Council have put a steel fence over that firewall.

It is interesting that by the time the case involving UTech reached the Privy Council, the Jamaican Employers' Federation (JEF) had taken over the argument on behalf of UTech. Therefore, the ruling of the Privy Council is one that all JEF members should study.

Dr Canute Thompson is head of the Caribbean Centre for Educational Planning, lecturer in the School of Education, and co-founder and chief consultant for the Caribbean Leadership Re-Imagination Initiative, at The University of the West Indies, Mona. He is also author of three books and several articles on leadership. Send comments to the Observer or canutethompson1@gmail.com.

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