Tribunal issues historic ruling
The Employment Rights Tribunal handed down an historic decision today in the case between the accounting firm, KPMG, and a former employee, Joel Leacock, ruling that the worker was unfairly dismissed, but should not be rehired by his former employer.
In its first ever ruling, the Tribunal ordered that Leacock, who was fired by KPMG as a business advisor on September 20, 2013, must be awarded total compensation of $71,407.67.
In delivering the 19-page ruling, which lasted just over an hour, chairman of the Tribunal Hal Gollop, QC, said this amount represented five weeks wages ($5,769.25) because Leacock worked with KPMG just short of two years, and 22 months in lost earnings ($77,176.92). The Tribunal subtracted $6,345.99 which had been paid to the claimant at the time of his termination.
“The claimant is also entitled to be reimbursed all payments made by him in respect of the Medical Insurance Scheme – $1,600. The Tribunal, guided by the principal of mitigation of loss does not consider it reasonable to make an award in respect of other claims argued by counsel,” said Gallop, flanked by Tribunal colleagues John Williams and Ulric Sealy. Both Leacock and his lawyer, Jewel Garner, are overseas and were absent for today’s ruling.
In explaining how the Tribunal came to its conclusion, Gollop said the employment rights body found that the company did not follow the procedures of dismissal and discipline laid out in the Employment Rights Act, part A of the fourth schedule.
He said the schedule sets out the rules to be taken into account under section 29 (4)b, which calls for disciplinary action to be applied progressively, and that except in the case of gross misconduct, an employee should not be dismissed for his first breach of discipline. He added that for breaches of discipline not amounting to gross misconduct, an employee should be warned and given reasonable opportunity to make correction, and should be given oral or written warnings, or both, before strong forms of disciplinary action are taken.
“The Tribunal did encounter some difficulty from the evidence presented in deciding whether the meetings between management and the claimant were in fact occasions when authentic oral warnings in respect of the claimant’s work were given, or whether they were merely occasions when management was trying its best to bring about some improvement in the work of the claimant by the use of less stringent methods,” the QC stated.
Stressing that it was a flagrant disregard of section 29 (4) of the Act, Gollop said the Tribunal found that KPMG did not adhere to the procedures which would have allowed it to take the step that sets out the grounds of appeal for the claimant.
“The language of the section is mandatory and clearly suggests that any departure therefrom by an employer would be fatal in matters of unfair dismissal. In the circumstances, the Tribunal finds that the claimant was unfairly dismissed,” the chairman added.
However, having found that Leacock was unfairly dismissed, the Tribunal ruled that he should not be reinstated or re-engaged because the rights body did not believe it was practicable for the employer or successor to comply with the order.
He said the members took into account the “emphatic and clearly expressed position” of KPMG’s witness that, given the choice, the company would definitely not have the claimant back on its staff.
“The Tribunal is therefore forced to make the decision on how best the claimant may be reasonably compensated.”
The Tribunal dismissed Leacock’s application for costs to be awarded, contending that the Employment Rights Act did not give a tribunal power to order costs.
The legal body also rejected a submission by KPMG that the application for hearing the matter was brought to the Tribunal by the claimant after the three month period stipulated by the Employment Rights Act.
In reacting to the decision, attorney for the company Sherica Mohammed Cumberbatch expressed dissatisfaction with the ruling.
“We think it unfortunate that the legislation is not as clear as it ought to be in relation to compensation . . . and there is some difficulty with that part of the Tribunal decision,” insisted Mohammed Cumberbatch.
Attorney Verla DePeiza, who stood in for the claimant’s lawyer, declined comment because, she said, she was not the substantive counsel.
A second case will be heard by the Tribunal on September 10, but it will not be the controversial and long-awaited issue dealing with the 200 dismissed National Conservation Commission workers. However, it was not immediately clear which case the body would hear.