The National Commercial Bank (NCB) has suffered a third straight defeat in its dispute with an employee.

The Court of Appeal last Friday upheld the decision handed down by the Supreme Court, and before that the Industrial Disputes Tribunal (IDT, that Bank Manager Peter Jennings should be paid for unfair dismissal.

In its 79-page written judgment, the Court of Appeal, comprising Justices Patrick Brooks, Almarie Sinclair-Haynes, and Paulette Williams, found that the bank had erred when it dismissed Jennings, who served the organisation for 33 years.

It therefore dismissed an appeal filed by NCB for a judicial review, after it was initially refused by Supreme Court Judge Bryan Sykes.

Jennings, one of the bank’s assistant general managers, was fired on November 19, 2012, after he was accused by NCB’s management of approving eight loans which the bank described as “delinquent” or “non-performing”, and would result in losses to the institution.

But Jennings, who at the time was in charge of the St James Street, Montego Bay branch, took the matter to the Industrial Disputes Tribunal which ruled on April 28, 2015 that the termination of his employment was unjustified, and he should be reinstated by May 26 that same year, with full emoluments from the date of the termination.

The IDT also stated that should NCB fail to comply with the ruling, then NCB, Jamaica’s largest commercial bank, should pay Jennings the equivalent of 220 weeks total emoluments at the current rate “in full and final settlement for his unjustified dismissal”. Jennings’ salary at the time was around $10 million per annum.

The IDT was represented at the time by its Chairman Norman Wright, D Trevor McNish and Rion Hall.

Veteran Attorney-at-law Gordon Robinson appeared for Jennings.

NCB, represented by Sandra Minott-Phillips and Jermaine Case and, instructed by the law firm Myers, Fletcher and Gordon, sought a judicial review and took the matter to the Supreme Court. But Justice Sykes, who heard the matter in chambers on May 22,26 and 27 last year, sided with Jennings and the IDT.

NCB contended that the IDT erred in law when it determined that Jennings’ dismissal was not justifiable in light of the breaches of the policies and procedures of the bank in granting loans totalling $48.5 million.

In the latest matter, the IDT was the frist respondent, and Jennings the second.

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

In arriving at the decision, the most senior of the three presiding judges, Justice Brooks said in part:

“The IDT, in its terms of reference, was asked to ‘determine and settle the dispute between the National Commercial Bank on the one hand, and Mr Peter Jennings on the other hand over the termination of his employment.’ It did just that.

“In this case the NCB summoned Mr Jennings to a disciplinary hearing from which he stood the chance of losing his employment, and, as a 33-year banker, his career.

“The IDT examined the circumstances leading to Mr Jennings’ dismissal and found that he was treated unjustly. In its review of those circumstances, it found that he was not given enough time to prepare the case against him. It found that the person who had drafted the charges, which he was to face at the hearing, constituted the tribunal which was to make the decision at the hearing. It further found that he was deprived of legal representation at that hearing and at the appeal from the decision of that hearing. All those issues spoke clearly to the issue of fairness in the case.

“There was evidence from which the IDT could have made those findings of fact. It was entitled, from its mandate and its experience, to conclude that he had been unfairly treated and that his dismissal was unjustifiable. A court should not interfere with such a finding. In those circumstances, judicial review was inappropriate. I agree that the application for judicial review ought to have been refused and that Sykes was correct to have done so. I would dismiss the appeal,” Justice Brooks wrote.

Sinclair-Haynes in a lengthier judgment, made reference to other other cases which supported her action for siding with the respondents.

“The IDT’s job is to say what it made of the material before it. That is exactly what it did,” she wrote.

“At all material times, Mr Jennings ensured that he wasn’t involved in the due diligence and pre-approval process, which was handed over to Patria Coke — an experienced underwriter who, by the time these matters arose, had been promoted to personal banker. This was in strict compliance with NCB’s written credit risk policy.

“The IDT rightly considered the appropriate factors in arriving at its decision that Mr Jennings was unfairly dismissed. Given its jurisdictional latitude, it is within its purview in determining whether Mr Jennings’ dismissal was justifiable to consider the issue which it did.

“Accordingly, in my view, the IDT’s decision ought not to be disturbed as it cannot be properly advanced that the complaints have any real prospect of success.

“In the circumstances, I would dismiss the appeal,” Sinclair-Haynes stated.

In her brief opinion, Williams confirmed a unanimous decision by the highly respected jurists.

“I have read in draft the comments of my brother Brooks and sister Sinclair-Haynes and agree that this appeal should be dismissed,” Williams said.

There was no order as to costs.

The IDT was represented by Tanya Ralph and Carlene Larmond, while Jennings was represented by Douglas Leys QC, Douglas Thompson, and Kimone Tennant.

NCB was represented by Minott-Phillips and Gavin Goffe, of the law firm Myers, Fletcher and Gordon.

The matter was heard on November 25, 26 and 27 last year, before the judgement was handed down last Friday.

The Michael Lee-Chin-chaired NCB is controlled by Portland Holdings Inc of Canada and is incorporated in Jamaica, with 47.9 per cent shares held by AIC Barbados.