THE Supreme Court has denied Jamaica’s largest financial institution, the National Commercial Bank (NCB), leave to apply for a Judicial Review in the matter involving a former senior manager and the bank.

In April, the Industrial Disputes Tribunal (IDT) found that NCB had erred in its treatment of Peter Jennings, who was dismissed from his post of assistant general manager in November 2012, after serving the bank for 33 years.

NCB was ordered to reinstate Jennings, or pay him his salary for 220 weeks, a decision that the bank was not satisfied with, which led to the organisation seeking the Judicial Review, the application of which was heard by Mr Justice Bryan Sykes, in Chambers, in the Supreme Court on May 22, 26, and 27.

NCB contended that the IDT — represented at the initial hearing by Norman Wright, the chairman; Rion Hall; and D Trevor McNish — erred in law when it found that Jennings’s dismissal was not justifiable in light of breaches of the policies and procedures of the bank in granting eight loans totalling $48.5 million.

Under the Labour Relations and Disputes Act, which established the IDT, all decisions of fact are final and the only challenge that can be made by way of Judicial Review is on points of law.

NCB was represented by Sandra Minott Phillips and Jermaine Case, instructed by law firm Myers Fletcher and Gordon, while Carlene Larmond appeared for the IDT, and Douglas Leys, QC, and Douglas Thompson represented Jennings.

NCB alleged that Jennings approved eight loans to individuals contrary to the regulations of the bank. The institution contended that the loans, which ranged from $4 million to $15 million, were in default and seven of them were supported by false documentation, as due diligence was not done.

However, Jennings maintained that he was not the one required to do the necessary cross checks to ensure that every applicant for a loan was so qualified.

Mr Justice Sykes, in his summation, argued that:

“It seems to this court that application for leave in this case is really about the findings of fact and conclusions drawn from those findings. If this is so, then there is no basis for Judicial Review because no law is involved.

“The Court of Appeal, in its latest decision on the IDT in The Industrial Disputes Tribunal v University of Technology, Jamaica and another [2012] JMCA Civ 46, has now closed off any further argument around the point of whether the court can interfere with the IDT’s findings and conclusions once there is available evidence to support the view. In that case, the Court of Appeal reversed the decision of Mangatal J in the Supreme Court. Brookes JA crystallised a number of principles about the IDT and the role of the judicial review court:

“No complaint has been made about the process before the IDT itself. There is no complaint that the IDT misunderstood the meaning of unjustifiable as defined by the courts. It is not even being said that the IDT had no evidential basis for its conclusion. What is being said is that the IDT should not have come to the conclusion that it did. When it comes to findings of fact, the only thing a court can examine is whether there is evidence to support the conclusion. Once there is, that is the end of the matter for the court,” Mr Justice Sykes said.

In an 11-page summary, the judge argued that a Judicial Review is about process; about whether the functionary acted within the limit of his powers and took into account all relevant matters and excluded all irrelevant matters.

“The findings of fact, their interpretation and analysis are for the statutory functionary and not the court. To say that the statutory functionary got it wrong when, on the face of it, he acted within his statutory remit, took note of all relevant matter, ignored irrelevant matter, requires a high degree of perversity, especially if it is the case that the statutory functionary had an evidential basis for his decision, regardless of how slender that basis is.

“Matters of weight of factors and how decisive or not they are, are within the purview of the IDT. No court, on a judicial view, can tell the IDT what weight it ought to give to any factor. The language of section 12 of the LRIDA is so strong. The position is that findings of fact are ‘unimpeachable’.

“Mrs Minott Phillips sought to say that the Tribunal’s conclusion that dismissal was unjustifiable was an incorrect view of the law because Mr Jennings’s sins were monumental and egregious. That, respectfully, is not a legal question unless one subscribes to the carve-out idea as explained earlier. Very learned Queen’s Counsel also submitted that a finding by the Tribunal that Mr Jennings was responsible for making the loans in question and then concluding that the dismissal was unjustifiable are inconsistent and irrational.

“Finally, Queen’s Counsel submitted that the IDT should have asked itself ‘was Mr Jennings in such dereliction of duty as to put the bank at actual or potential risk, and warranted his dismissal’,” the Supreme Court judge stated.

Here, in summary, is the position taken by Mr Justice Sykes in the matter:

“Mrs Minott Phillips pointed out that so far from the approved track was Mr Jennings that the IDT itself concluded, if in only mild understated tones, that Mr Jennings’s due diligence was somewhat lacking and that he was ultimately responsible for the breach.

“If this court is permitted, it respectfully disagrees with the submissions of very learned Queen’s Counsel. The IDT, on the face of it, did what was required of it according to Rattray P, Forte P and the Privy Council.

“The IDT is not bound by the employer’s view of the matter and neither is it bound by the employee’s view of the matter. It is not the IDT’s mandate to ask itself whether Mr Jennings’s dismissal was warranted in law and stop there. It must look, and is duty-bound to examine at all the relevant circumstances, find facts, interpret them, draw conclusions and apply the statute. Once it makes its findings of fact, then it goes on to answer the ultimate question of whether the dismissal was unjustifiable.

“This process is not a strict black letter law process. It takes into account notions of fairness, justice and equity. The IDT is entitled to ask whether, in their view, what happened accords with notions of justice, fairness and equity. These are abstract concepts not capable of exact and precise definition. It is their view, not the court’s view that matters.

“The carve-out approach is capable of generating case law about whether this or that fact is close or far to this carve-out or that carve-out. What has happened under the LRIDA is that the legislature have immunised the IDT from this kind of attack. This does not mean that the IDT is perfect, but the legislature has struck the balance in favour of the IDT and not the courts.

“The courts deal with legal definitions, but not meaning and conclusion drawn from facts. Even if the court thinks that the IDT was silly to interpret the fact in a particular way, that is of no moment as long as it is plausible. The IDT is similar to a jury in a murder case; once there is some rational basis for the decision then it cannot be touched, even if others may think that the jury were absolutely stupid to accept a particular fact or come to a particular conclusion.

“The IDT concluded that Mr Jennings’s dismissal was unjustifiable. It looked not only at his breach but at what the employer did. No one has suggested that factors looked at by the IDT were irrelevant. The IDT had the following before it:

(a) the chairman of the disciplinary panel signed the letter formulating the charges;

(b) the IDT concluded that the chairman actually drafted the charges laid against Mr Jennings;

(c) Mr Jennings was told of the disciplinary hearing around 5:00 – 6:00 pm on November 5, 2012 and was summoned to a disciplinary hearing to be held at 10:00 am on November 6, 2012;

(d) the right to counsel only applied to staff members who were part of the union but did not apply to senior management;

(e) the actual report that formed the basis of the case against Mr Jennings was not given to him before the hearing;

(f) Mr Jennings was not allowed to examine before the hearing the evidence that was gathered against him;

(g) the disciplinary panel consisted of a Mr Reid who reported to Mrs Tugwell-Henry who in turn reported directly to Mr Dennis Cohen who heard and dismissed the appeal of Mr Jennings;

(h) Mr Jennings was told that the only representatives available to him would be from persons within the bank;

(i) Mr Jennings did not ask for a postponement of disciplinary hearing;

(j) the charges were complex.

“The IDT’s job is to say what it made of the material before it. That is exactly what it did. Whether this or any other court would come to another conclusion is irrelevant. It took into account Mr Jennings’s lack of diligence and other matters in order to make the determination. The only question is whether there was material on which the IDT could ground its decision. The answer is clearly yes.

“Indeed, Mrs Minott Phillips did not contend that there was no evidence to support the position. Her view was that the IDT gave insufficient weight to the breaches by Mr Jennings. The answer to that has already been given by the Privy Council in Jamaica Flour Mills; those are matters of fact for the IDT to resolve, not the courts.

“In respect of the point relating to legal representation, the IDT held that part of the audi alteram partem rule, in the circumstances of this case, should have been Mr Jennings’s attorney-at-law. Mrs Minott Phillips cited the case of R (on the application of G) v Governor of X School [2012] 1 AC 167, in the footnote of her written submissions for the proposition that no person has a legal right to an attorney-at-law at an internal disciplinary hearing.

“The case turned on the peculiarities of article 6 of the European Convention on Human Rights and whether a person is entitled to legal representations where there are two connected proceedings to determine a person’s civil rights or obligation. The majority answered the question in the negative. Lord Kerr JSC dissented. The court cites the following passage from Lord Kerr JSC because it states the value of legal advice.

“This court agrees with Mr Leys that NCB did not necessarily have to permit the lawyer to be present to cross-examine witnesses. The participation of the lawyer may have involved written submissions on either procedural or substantive points. This court is not saying that there is any rule of law that requires lawyers to participate in internal disciplinary processes, but where an employee is faced with what might, in real and practical terms, be a career-ending (not just termination of employment with the particular employer) disciplinary hearing it may be prudent to give very, very careful thought as to whether the person should be allowed legal representations.

“The point is that legal representation at an early stage can have a decisive impact on the overall outcome. What the IDT was saying in this case is this: NCB recognised in its agreement with members of the staff association (which excludes senior managers) that in some instances both the bank and the employee may resort to lawyers. If this is so with lower level employees, then should not a manager who is faced with a possible career-ending hearing not be afforded legal representation? Was this approach by NCB just, fair and equitable in all the circumstances?

“Mr Jennings was told the evening of November 5 that the following morning he would face charges and a hearing into matters that have brought his honesty and integrity into issue. Where would the time come from to find and consult with counsel or indeed any other person before the hearing? Where would Mr Jennings find a lawyer or any other person to assist him after 5:00 (pm) or 6:00 (pm) on November 5? Had Mr Jennings been able to consult, could it be that he would have been advised to ask for adjournment? This is the point that Lord Kerr JSC is making.

“Legal representation is not only about refuting charges. It can include advice on how to manage the proceedings. Even if Mr Jennings was permitted representation by counsel or someone from NCB, would that person be adequately prepared to provide real and effective assistance to Mr Jennings in 16 hours when, on the available material, not even the very report that formed the foundation of the charges was given to Mr Jennings, to say nothing of access to the files in question at that time of day?

“Is it being said that Mr Jennings and whomever his adviser was to spend a sleep-deprived night preparing for this hearing? In addition, there was a body of evidence that suggested that there was a separation of function between those who checked the documentation for accuracy and veracity and those who actually approved the loan. The charge sheet did not make it clear whether the allegation was that Mr Jennings personally oversaw the approval process by examining the documentation himself, saw what has been termed the red flags, decided to ignore them and granted the loans, or was it being said that as the manager ultimate responsibility rests with him.

“Having regard to the vagueness of the details of the charges, the absence of legal representation, the short time for preparation and the complexity of the charges the IDT concluded that the dismissal was unjustifiable. From this court’s perspective, this type of assessment is for the IDT and not for any court. These are matters of fact and their interpretation, which the IDT is required to do.

“What the IDT was saying is that — when all things are looked at, including the fact that a 33-year banker was being hauled before a disciplinary proceeding that could end his career, not only with NCB but with the entire banking community in the small island of Jamaica, given at most 16 hours notice to defend serious allegations of dishonesty — something is not fair, just and equitable about the dismissal. Add to this that the presiding ‘judge’ of the disciplinary panel also played a role of chief prosecutor formulating or preparing the charges. Add to this the inability to secure legal representation at the appellate stage, can it really be said that dismissal was fair, just and equitable?

“This court concludes that the IDT acted within its remit.

“There is no basis for leave to apply for Judicial Review to be granted because there is no realistic prospect of success in light of how the jurisprudence has developed and where it now is. Application refused.”