IDT facing legal challenge for ruling in favour of axed employee

Margaret Curtis is looking forward to moving on with her life for the new year, following last year’s November ruling by the Industrial Disputes Tribunal (IDT) that she was unjustifiably dismissed from her job in 2018. But that could prove to be challenging.

On November 14, the IDT declared that Curtis is to be reinstated as the manager of the Property Department of the Jamaican Redevelopment Foundation Inc. (JRF), where she worked for 16 years. She was also awarded the sum of US$203,280. Failure to reinstate her as stipulated, the company must pay her compensation in the amount of US$223,600.

Despite her testifying that “the environment was not very conducive but really toxic”, she had indicated that she loved her job and wanted to be reinstated.

But, last week, Curtis told The Sunday Gleaner that she was no longer interested in going back to the job, so it would be in her best interest to be speedily compensated, as so many things had happened during the last four years since her dismissal.

However, attorney-at-law Gavin Goffe, who is representing the JRF, told The Sunday Gleaner that an application will be filed in the Supreme Court seeking leave to go to the Judicial Review Court to quash the IDT’s award.

The JRF also filed a constitutional lawsuit in 2021 against the IDT, claiming that it is not an independent and impartial arbiter of labour conflict.

The suit, which is expected to be heard early this year, stemmed from Curtis’ matter. One of the complaints is that it is the consistent practice of the IDT to stay proceedings when there is a challenge to its authority.

JRF is contending that it will stand irredeemable prejudice should the IDT determine the dispute against it and it is faced with an immediate obligation to satisfy any financial award made in favour of Curtis.

NO EVIDENCE TO THE CONTRARY

Curtis’ case was referred to the IDT in November 2019 by the Ministry of Labour and Social Security. She was represented by industrial relations consultant Senator Lambert Brown.

The IDT pointed out in its ruling that the JRF took the matter to court. However, it was not obligated to stay the proceedings pending the outcome of the court case.

“The argument of the aggrieved is that her leadership role in confronting management on behalf of the staff on more than one occasion over the non-payment of the ‘discretionary bonus’ was the reason for the termination. The company has not availed itself of the opportunity to present evidence to the contrary,” The IDT said, noting that the Labour Relations Code was breached.

The JRF, which is incorporated in the United States, is a debt collection agency that acquired the largest portfolio of distressed debt sold by the government in the aftermath of the 1990s financial meltdown. It had appointed Joslin Jamaica Limited as service provider for the portfolio.

Curtis started her employment with Joslin Jamaica Ltd as credit officer on April 2, 2002. After completing her probation period, she was confirmed on staff, effective May 1, 2002, as loan recovery officer. The contract stated that she would be paid in US dollars and would also be paid an annual gratuity calculated at 25 per cent of her basic salary, which would be paid at the end of November.

On May 19, 2005, her service was terminated with Joslin on the understanding that the JRF would offer her a contract of employment. The JRF, by way of a letter dated May 19, 2005, advised her of her contract of employment commencing June 19, 2005. Curtis was also advised in the letter that her employment with Joslin would count as part of the period of employment with the company.

She was employed as property manager, with her contract stating that her basic salary would be paid in US dollars and that she would be paid an annual bonus of 10 per cent of her basic salary.

Curtis’ function included the selling of properties which JRF had acquired from the FINSAC portfolio.

Her contract was amended on May 19, 2005, to the effect that, in the event that she was made redundant after December 31, 2005, she would only be entitled to redundancy payment under the law.

NON-PAYMENT OF BONUS

Curtis testified before the IDT that she received no increase in salary since August 2009. She said, despite a discretionary bonus being a condition of her employment, no payment was made in 2016 and she was only paid in January 2017 after representation.

The non-payment of bonus, she said, was a major area of dissatisfaction by the staff at JRF.

She said, on October 2, 2017, the president of the company, Joe Gibson, sent an email regarding the non-payment of discretionary bonus. She was unhappy about the email, and she said she protested.

On March 1, 2018, there was another email from Jason Rudd, chief executive officer of JRF, indicating the non-payment of discretionary bonus.

She testified that, in a weekly meeting attended by both Gibson and Rudd, she again protested the non-payment of discretionary bonus but she “got no positive or meaningful response” to her protest.

Curtis gave evidence that, by way of a letter dated August 31, 2018, she was advised of the termination of her services as manager of the Property Department.

“As discussed, due to the continued trend of decreasing sales and overall performance of our property department, we have decided to terminate your services as Manager of our Property Department. Please note that this is not a termination by reason of redundancy. The success of our business hinges largely on the performance of our property department, and we have no intention of scaling back our property sales and services,” the letter read.

“Pursuant to the terms of your employment agreement and the terms of the Employment Agreement (Termination and Redundancy Payments) Act, we are required to provide you with eight (8) weeks’ notice of your termination. This letter will serve as such notice.”

It continued, “During the notice period, you will not maintain regular office hours. However, you will be required to be available for consultation with any staff member of the JRF for purposes of assisting in this transition. Assuming your cooperation, you will continue to be paid during the notice period on the regular scheduled dates. Failure to assist will result in immediate termination without further notice and salary payments will be prorated to such date of termination.

“You are required to immediately return keys or any other property of JRF presently in your possession. Kindly be advised that you will be covered under the Company’s Group Health until October 31, 2018.”

NEWSPAPER ADVERTISEMENT

Curtis said she saw an advertisement in The Sunday Gleaner of September 16, 2018 in which the JRF advertised for a suitable candidate to fill the position of real estate sales agent.

A JRF representative objected to the advertisement being accepted as evidence on the basis that it took place after the termination letter of August 31, 2018.

Curtis contended that her dismissal was unjustified and unfair and the conduct of the JRF was in breach of the Labour Relations Code. She said it was obvious that the termination of her services was in breach of her contract. There was no complaint about her performance or conduct.

Under cross-examination, Curtis said that, if, in 2018, she had been compensated for her years of service, it would have been acceptable and that would have compensated for her unjustified dismissal. She said her unjustified dismissal related to her being fired.

The tribunal, in its findings, stated that it agreed that, with the absence of evidence from the company to point to a reason or reasons for the termination of Curtis’ service, and since the termination letter stated it was not by reason of redundancy, that meant that the declining business was not the issue.

Neither could the termination be on the basis of non-performance, as there was no evidence of that in the termination letter nor was it alluded to in the cross-examination by the company of any poor performance by Curtis, the IDT noted.

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