Victoria Mutual Wealth Management fined for contempt of court

Victoria Mutual Wealth Management Limited (Victoria Mutual) has been found to be in contempt of a court order involving an employee who was sent on fully paid administrative leave and is to pay a fine of $400,000.

The July 2021 Supreme Court contempt order, which is being hailed in legal circles as a landmark ruling, was upheld by the Court of Appeal last Friday when it dismissed an appeal brought by the financial institution.

“In applying the principles laid down in the Canadian case of Potter Legal Aid Services Commission, the Court of Appeal held for the first time in Jamaica that where an employer sends an employee on fully paid administrative leave and locks the employee out of its email system, such action could amount to an adverse step against the employee,” said attorney-at-law Conrad George, who represents the employee, Colando Hutchinson, deputy chief executive officer of the financial institution.

“This opens the door for the first time in Jamaica for such an employee to claim constructive dismissal despite being paid in full while on suspension.”

Hutchinson’s dispute with Victoria Mutual is now before the Industrial Disputes Tribunal.

The financial institution had appealed against a ruling made by Justice Kissock Laing in July 2021. It contended on appeal that the judge erred in finding that it had breached a Court of Appeal order when it required the respondent, Hutchinson, to proceed on paid administrative leave pending the outcome of disciplinary proceedings being instituted against him. Victoria Mutual argued on appeal that the judge made several erroneous findings of fact and law in arriving at his ultimate finding of contempt, but the judge’s order was upheld by the Court of Appeal.

Hutchinson had first sought an injunction in the Supreme Court to restrain the disciplinary proceedings brought against him by the financial institution. Disciplinary charges were brought against him in November 2020 for alleged breaches of the Victoria Mutual’s Code of Ethics and Conduct Policy in relation to allegations of conflict of interest. He was required to attend two disciplinary hearings in December 2020 and to proceed on remote work pending the completion of the disciplinary hearings.

Interim injunction

On December 16, 2020, Hutchinson sought an injunction in the Supreme Court to restrain those disciplinary proceedings. Laing granted an interim injunction on December 20, 2020, which was valid until December 22, 2020, when there would be an inter partes hearing. Laing refused Hutchinson’s application for injunctive relief at the inter partes hearing.

Hutchinson took the issue to the Court of Appeal and, on December 30, 2020, Justice Nicole Foster-Pusey granted an interim injunction pending an inter partes hearing on January 19, 2021, in chambers. The bank then sent a letter on December 31, 2020, placing Hutchinson on paid administrative leave, and informed him that they were not certain when the court process would be completed. The letter stated that he was not required to work or participate in any work-related activities.

Lawyers representing Hutchinson wrote to the bank, stating that the paid suspension and locking him out of the work email was a breach of Foster-Pusey’s order, which was made in chambers at the Court of Appeal.

An application seeking orders and declarations was filed by Hutchinson in the Supreme Court on January 13, 2021, and following a hearing in June, 2021, Laing ruled on July 15, 2021, that the financial institution had committed civil contempt by placing Hutchinson on paid administrative leave and ordered Victorial Mutual to pay $400,000.

The bank appealed, but the Court of Appeal, comprising its president, Justice Patrick Brooks, Justice Vivienne Harris, and Justice Marcia Dunbar Green, in dismissing the appeal, said “the order was clear and unambiguous, the appellant had due notice of the order, the appellant knew of the facts which made its conduct a breach; and the appellant, intended to do those acts, which caused the breach of the order”.

King’s Counsel Symone Mayhew and attorney-at-law Ashley Mair, instructed by MayhewLaw, represented the bank.

Attorneys-at-law Conrad E. George and Andre K. Sheckleford, instructed by Hart Muirhead Fatta, represented Hutchinson.

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