Simpson Finance to challenge $5m IDT award to ex-employee

Simpson Finance Jamaica Limited, an in-house financing company for vehicles and industrial equipment sold by the Stewart’s Automotive Group, is seeking leave to apply for judicial review into a $5.2-million award by the Industrial Disputes Tribunal (IDT) to Christopher Bernard, who was “unjustifiably” dismissed on June 25, 2018.

The IDT made the award on October 19, 2021, and Bernard, through the University and Allied Workers’ Union’s Lambert Brown, who represented him before the tribunal, had written to the company’s attorney, Christopher Dunkley, seeking payment for his client. Some seven months had expired since the award was made.

In the dispute involving Bernard, a former finance officer, and Simpson Finance Jamaica Limited over the termination of his contract of employment, oral submissions were made to the IDT panel over 15 sittings spanning from November 26, 2020, to June 30, 2021.

On May 29, 2018, Bernard had received a letter from the company advising him that he was being suspended with pay pending the outcome of investigations into matters relating to a customer’s loan.

He received another letter on June 4, 2018, from the company to attend a disciplinary hearing, which was held on June 15, 2018.

During the hearing, Bernard reportedly expressed concerns regarding the conduct of the proceedings and subsequently withdrew, along with his attorney, Alexander Williams.

The company advised Bernard on June 25 of the outcome of the disciplinary hearing. Bernard, who was dismissed on the same day, appealed the decision and was unsuccessful.

Loan irregularities

In his submission to the IDT, Dunkley stated that a customer had failed to make payments on a loan and when checks were made, irregularities were discovered.

He said that the company’s loss prevention supervisor recommended that a preliminary investigation be convened. Dunkley outlined that there were factors surfacing that allegedly implicated Bernard and the company suspended him with pay, pending the outcome of an investigation.

Dunkley said that charges were made against Bernard, and he was then invited to a disciplinary hearing after being furnished with witness statements, an investigation report, and extracts from the company’s employee handbook.

But Brown told the IDT panel that the procedures of the disciplinary hearing, which led to the dismissal, were “fatally flawed and unfair”.

Brown urged the IDT to take into account the Labour Relations Code and rules of natural justice, which he said were applicable to Bernard’s case.

He declared that Bernard had insisted that the company failed to meet the burden of proof and, as such, Bernard’s dismissal was unjustified.

Bernard told the IDT that his dismissal had negatively impacted his ability to obtain employment in the financial sector.

In arriving at its decision, the IDT panel considered the conduct of the disciplinary hearing and “confirmed their earlier opinion that Mrs Patricia Wright-Martin (group human resources manager), who had testified that she had oversight of the investigation, had chaired the disciplinary hearing”.

The IDT panel also observed that Fiona Fearon, general manager of the company, who, as a witness, gave evidence on behalf of the company, admitted to being a member of the management staff that had deliberated over the findings, opinions and recommendation of the hearing panel that had decided to impose the penalty of dismissal.

The IDT adjudicators were also of the view that restrictions were placed on Alexander Williams, the attorney representing Bernard, with regard to his questioning of witnesses.

The tribunal members agreed that the review panel had not allowed Bernard adequate time and opportunity to present his case.

“It is for these reasons, and guided by the rules of natural justice, that the tribunal finds that the disciplinary process engaged in by Simpson Finance Company Limited against Mr Christopher Bernard was flawed and unfair, thereby rendering the termination of his services unjustifiable,” the IDT concluded.

In the notice filed by Simpson Finance Limited, through its attorneys, Phillipson Partners, the company said it was seeking an order from the court to quash the IDT’s decision, which also ruled that Bernard be compensated $5.2 million.

In making a case for the award to be set aside, the attorneys for Simpson Finance Limited charged that the IDT “wrongly held that the company’s group human resources head, Wright-Martin, was the chairman of the disciplinary hearing of Bernard”.

The company said it suffered financial loss occasioned by the alleged actions of its former employee, which led to the charges made out against him at the disciplinary hearing conducted by the company, for which he had the opportunity to be heard.

“The applicant is therefore personally and directly affected by the decision of the respondent, as in addition to the financial loss suffered, the applicant has been ordered to pay Christopher Bernard $5.2 million.

“No alternative form of redress exists, as the relief being sought is central to any proper review of the reasonableness, propriety or fairness of the respondent’s decision.”

The IDT panel comprised Charles Jones, Leslie Hall and Clinton Lewis.

editorial@gleanerjm.com