The recent Judicial Review decision in the case of Branch Development Limited T/A Ibero Star v Industrial Disputes Tribunal and Marlon McLeod [2019 JMSC Civ. 226 Unreported November 29, 2019] and the resultant public discourse in the media, brings to the fore an interesting issue in employment and labour law. Under what circumstances can an employee be suspended and what are the implications for either party to the employment contract of doing so? The fact are summarized thus:
Mr. Marlon McLeod (a non-unionised employee) was initially employed to the Ibero Star Hotel in April 2010 as a Concierge, eventually being confirmed in employment and promoted to Assistant Public Relations Manager in December 2015. Up to that point in his tenure as employee, he had a spotless disciplinary record. Maybe in the mind of McLeod the unthinkable happened. In February 2016, mere months after his promotion, he was issued with a letter of suspension without pay pending investigations, on the premise that he was complicit in the alleged fraudulent use of a hotel guest’s credit card. It was stated that another employee who was eventually arrested and charged in connection with the case, implicated him in respect of the matter.
Thus began the train of events leading up to the judgement. An initial period of 2 weeks suspension was extended indefinitely in mid-February 2016. Several communications then ensued between the Hotel and the employee’s lawyer, with McLeod attending the police station in connection with the matter. Yet, he was never arrested nor charged or investigated by the police. Perhaps inevitably, the matter arrived at the Ministry of Labour and Social Security, where conciliation failed to resolve the issue. In April 2018 the Minister referred the matter to the Industrial Disputes Tribunal (IDT) for adjudication.
The Hotel challenged the jurisdiction of the IDT to act in the matter inter alia on the premise that Section 12 of the Labour Relations and Industrial Disputes Act (LRIDA or “the Act”) does not allow the IDT to provide any remedy except in the case of unjustifiable dismissal and this case did not involve a dismissal. Further, the Hotel contended that the definition of “industrial dispute” did not extend to “administrative suspensions” hence the IDT was not empowered to hear the instant case.
In dismissing the matter the learned judge, Pusey J. examined the issue of jurisdiction by looking at the rationale for the Act’s existence and specifically the 2010 amendment to the LRIDA which opened up access to the IDT to non-unionised workers. The judge concluded that the Act at its inception was designed to provide remedies that had hitherto not existed prior to its promulgation. In the same vein after copiously quoting the Parliamentary Hansard of the debate surrounding the passage of the 2010 amendment, the judge concluded that the intent of Parliament was to provide the non-unionised worker with an avenue to pursue a “rights dispute” using the mechanisms provided by the IDT. Relying on the Mischief Rule of statutory interpretation (or the rule in Heydon’s Case (1584) 76 ER 63) the court confirmed the view that the IDT indeed had jurisdiction, since the issue of suspension without pay for an extended period constituted an issue concerning the employee’s rights.
As it relates to the issue of the IDT not having jurisdiction to deal with administrative suspensions, (e.g. those undertaken as a part of an investigatory process), the learned judge again examined the purpose of the legislation and the fact that the scheme of the Act was to settle disputes. Given that, the IDT was empowered to hear and determine “rights disputes” the fact that the LRIDA does not specifically prescribe a remedy (as it does with compensation and reinstatement for unjustifiable dismissals) did not preclude the IDT from arriving at a fair and reasonable conclusion in respect of the current dispute. In this case, the court was of the view that an order to lift the suspension could well have been a decision available to the IDT to reach. In the end the “spirit and dictates of the Act” was a powerful guidepost to the judge making the decision.
I was a part of the legal team at the Ministry of Labour and Social Security when the Act was being amended in 2010. In my mind, the judge’s view has some credence; the fact is that the number of employees that have the benefit of unionisation (and prior to the amendment, the only grouping having access to the IDT) has greatly diminished with a conservative estimate being about 20% of the working populace. With the majority of the workforce now conceptually being able to have their rights disputes adjudicated by the IDT, this should, at least conceptually offer greater protections to the employee, and heighten the employer’s awareness of the provisions of the Labour Relations Code and prompt more entities to consistently act in accordance with its provisions. Further, the purposive approach to statutory interpretation utilised by the court is to be commended.
Interestingly, the matter of how to deal with indefinite suspensions without pay has previously been a matter for judicial consideration in the Jamaican court. The reported case of Harold King v The Buzzer Limited (1980) 17 JLR 194-202 is instructive and has some eerily similar facts to the McLeod case. Here Mr. King “by dint of hard work and proved capability”, rose from the post of Messenger in the company when he was first employed in 1952, to becoming a Manager in 1968. In September 1975 based on an initial audit carried out in the company, it was discovered that there was a cash discrepancy at the location managed by Mr. King. The police was engaged and further audits were commissioned and thus Mr. King was advised that he was being placed on suspension until further notice. Mr. King immediately sought to make contact with his employers with respect to the suspension, however he was never favoured with a response.
Eventually no police report was produced regarding the alleged misappropriation of funds, neither could the internal audit (which was finalized in July 1976) definitively draw any conclusion that Mr. King was complicit in any wrongdoing in respect of the missing funds. Rather, the audit evidenced a system that lacked checks and balances, with a number of areas that allowed for losses to the business in circumstances where the Manager had little or no control over how the operations were being effected. Notwithstanding this, the company refused to recall Mr. King to work and this led him to bring a claim in the Supreme Court for breach of contract.
The court in coming to the conclusion that the employer did indeed breach Mr. King’s contract by keeping him on indefinite suspension for more than 4 years, acknowledged that suspension was an accepted form of discipline within the Jamaican employment and labour law landscape, even being acknowledged by the IDT. The Court was however of the view, that suspension is a disciplinary measure for misconduct should only be imposed for a limited period with deprivation of enjoyment of remuneration. It cannot be for an unlimited period.
Notwithstanding that the King Case is one where a common law claim was made for damages as opposed to the McLeod Case where the aggrieved employee approached the Ministry of Labour and Social Security to pursue a claim under statute, it is my view that a properly imposed suspension (either administrative or punitive) should never be imposed indefinitely. In An A-Z of Employment Law, Peter Chandler, notes the following:
An Employer may not presume to suspend an employee without pay… unless there is an express term in an employee’s contract of employment which purportedly gives the right to do so. In the absence of any such right, such suspension is technically a breach of contract.
If an employee appears guilty of gross misconduct sufficient to justify dismissal, the employer must nonetheless investigate the relevant circumstances. If the employer’s investigations are likely to take a little time, the employee may be suspended for a brief period on full pay. Suspension without pay in such circumstances is unacceptable.
Jamaican employers may be well served by following these pointed guidelines.
Finally, if recent newspaper reports are to be believed, after the Court’s ruling, Mr. McLeod was called back to work and immediately advised that his position was made redundant and thereby he was dismissed. This now creates another dynamic in the case which was remitted to the Tribunal by the Court for the hearing to proceed. Given this now factual position, it will be interesting to see how counsel and the IDT will respond. We will keep watching this case, as it will no doubt provide more fodder for discussion.
More Anon!!
