Costly dismissals

Another “unjustifiable” dismissal by a Government-owned company is set to cost taxpayers a multimillion-dollar payout.
Agro-Investment Corporation (AIC), which falls under the Ministry of Agriculture and Fisheries, has been ordered by the Industrial Disputes Tribunal (IDT) to pay sacked cluster coordinator Sankofa Mukulu $9.1 million for the sudden and immediate termination of his two-year contract in 2018.
“The tribunal finds that the way in which Mr Mukulu’s contract of employment was terminated was unreasonable and shows very little, if any, concern for his dignity and human feeling as a worker,” the IDT said in its decision that was handed down on November 17 last year. 
Mukula is still awaiting payment.    
It adds to a string of dismissals by State-owned entities that have cost taxpayers nearly $60 million in recent years, with other cases pending.
Last week, the Supreme Court ruled that the transfer of Dr Dean-Roy Bernard from his position as permanent secretary in the education ministry to director general in the Ministry of Finance and the Public Service was unconstitutional.
The judges said the question of an award of damages to Bernard did not arise because there was no indication in his pleadings that the court should have considered a relationship between the grounds for the lawsuit and a cause of action for damages.
Marc Williams, the attorney who represented Bernard, said he had no comment when asked by The Sunday Gleaner yesterday whether his client plans to pursue monetary damages against the Government.
In another case, Petrojam, the State-owned oil refinery, was ordered by the IDT in 2020 to pay former general manager Howard Mollison $15.8 million; and the equivalent of one year’s salary to former human resource manager Rosalee Scott Heron in 2019 for their “unjustifiable” dismissals.
Scott Heron’s total salary package at the time was $9.8 million per year.
Her successor, Yolande Ramharrack, who was deemed unqualified for the position, negotiated a $13 million payout with a non-disclosure agreement to walk away from the job while she was facing over a dozen disciplinary charges.
A claim for compensation by another former Petrojam general manager, Floyd Grindley, is also pending at the Ministry of Labour.
‘Company not complying’
Lambert Brown, the industrial relations consultant who represented Mukulu before the IDT, said up to late Friday no payment had been received from AIC and accused the company of breaking the law.
“The company is not complying with the Labour Relations and Industrial Disputes Act (LRIDA) and the decision of the tribunal,” Brown charged, citing the provisions of the legislation.
Section 12, sub-section six of the LRIDA stipulates that “an award in respect of any industrial dispute referred to the Tribunal for settlement and any decision given under sub-section 10 shall be binding on the employer, trade union and workers to whom the award relates”.
Brown acknowledged that AIC has written to him, signalling an intention to explore the possibility of going to court to appeal the IDT’s decision, but said the 90-day window created by the court’s civil procedure rules for legal challenges has already closed.
And he warned that Mukulu would consider filing criminal charges against the State-owned company if the delay continues.
Section 12, sub-section nine of the LRIDA stipulates that “any person who fails to comply with any order or requirement of the Tribunal shall be guilty of an offence and, in the case of an employer, shall be liable, on summary conviction before a Resident Magistrate, to a fine not exceeding $500,000 and in the case of a continuing offence to a further fine not exceeding $20,000 for each day on which the offence continues after conviction.”
Up to late yesterday, Minister of Agriculture and Fisheries Pearnel Charles Jr; acting AIC chief executive officer, Owen Scarlett; and the company’s senior legal counsel Shari Smith did not respond to questions submitted by The Sunday Gleaner on Thursday about the case.
Terminated ‘with immediate effect’
Mukulu was almost five months into his two-year contract with AIC when he said he was summoned to a meeting by then AIC boss Sylburn Thomas on May 29, 2018 “for a review and assessment of his performance”.
But he said after waiting several hours, Thomas showed up and handed him a letter indicating that his employment was terminated “with immediate effect”.
The letter “explicitly” stated that the former cluster coordinator’s contract was terminated because of his “inconsistent performance which is not in accordance with the standard expected requirement”, AIC asserted, according to a transcript of the IDT case obtained by The Sunday Gleaner.
AIC, through its senior legal counsel, argued before the three-member panel that this amounted to a breach of the contract, which took effect on January 2, 2018, and grounds for Mukulu’s dismissal.
As a result, Smith said the company relied on the probation clause in the signed contract to terminate his employment without notice.
The contract required Mukulu to serve a six-month probationary period during which either side could end the agreement without notice.
“Therefore, Mr Mukulu, by signing and agreeing to the terms of the contract of employment, waived his right to notice,” the company asserted, pointing to the provisions of the Employment (Termination and Redundancy Payments) Act (ETRPA), according to the transcripts.
Mukulu’s unchallenged evidence was that he was never given a written job description and that he was told verbally that his duties were to train farmers and develop demonstration or discovery plots to assist investors who wanted to grow different crops in a scientific way, the IDT noted.
The sacked cluster coordinator gave evidence, too, that he successfully sought sponsorship for the project after the company’s chief accountant told him that there was no budget in place.
The IDT, in rejecting AIC’s arguments, noted that there was no evidence of any assessment or evaluation of Mukulu’s performance by management.
“The fact that Mr Mukulu’s contract of employment states that either of the parties can terminate the contract by giving the other party one month’s notice … does not mean that a person’s job should be treated as an article of trade,” the three-member panel declared.
“Further, the rules of natural justice dictate that the accused has a right to be heard … and the case he has to meet. The tribunal concludes that Mr Mukulu was not afforded this right,” it added.
The IDT also flagged the State-owned company for breaching Section 3, sub-section 4 of the ETRPA.
“The law clearly states that no notice may be given in the first 90 days of the probationary period. However, if the probationary period is longer than 90 days, for any termination thereafter notice is required,” the panel said, noting that Mukulu’s employment had surpassed 90 days.
Several cases of concern
There are other cases across the public service that are of concern to the unions that represent public sector employees.
O’Neil Grant, president of the Jamaica Civil Service Association (JCSA), cited, as an example, the case of two women employed to King’s House who have been on suspension without pay since October 6, 2021.
According to Grant, the women were sent home on the grounds that they had failed to prove to their employers that they were vaccinated against COVID-19, instead presenting negative test results for the virus.
“There were no charges brought against them … there was nothing that said they were being disciplined. They have not paid them, they have not fired them, they have just decided not to do anything with them,” he said.
“Nobody wants to ask the governor general why is it that he is treating the staff the way they have been treated and if he has issued any instructions for those staff members to be reinstated,” Grant added, claiming that pleas to the finance ministry and the Services Commission have been unsuccessful.
The women are ‘suffering’
Responding to questions submitted by The Sunday Gleaner on Friday, King’s House Press Secretary Rajae Danvers said the case involving the two women has been referred to the Office of the Solicitor General.
“Our office has not been updated on any action yet taken regarding this matter,” said Danvers.
The JCSA president said both women are “suffering” and cannot afford the services of an attorney to act on their behalf.
Grant disclosed, too, that the union aborted a planned legal action against King’s House “after we were given the assurance that the matter was going to be dealt with. We may now have to go and ask for an injunction for the ladies to be reinstated until whatever is happening with them is dealt with.”
livern.barrett@gleanerjm.com