Just over a month after the reconstituted Employment Rights Tribunal began its historic first hearing, chairman Hal Gollop QC will announce in about two weeks’ time whether the seven commissioners agree to award a dismissed worker more than $80,000 in damages or order reinstatement.
The tribunal, which met at the Labour Department in the Warrens Office Complex, St Michael during the past 33 days, ended its inaugural sittings this afternoon. The first case was a matter where Joel Leacock claimed he was unfairly dismissed on September 20, 2013 as business advisor in transactions and restructuring at accounting firm KPMG.
In her final submissions to the judicial body which took approximately half hour, attorney at law for Leacock, Jewel Garner, asked that her client be awarded $76,153.66 in lost wages retroactive from the date of dismissal to the start of the hearings. Garner also tried to impress on the commissioners that the claimant was entitled to an additional benefit of $1,621.18 from the company’s group medical insurance scheme.
She further urged the body to consider compensating her client for his pension contributions of $713. 65 which he had made in 2012 and $1,762.18 in 2013.
However, the attorney pointed out that if one were to factor in the matching contributions of the employer, that would bring the total to $4,952.90.
But Garner was quick to note that the final figure would be speculative, since pensions went into a fund and interest was added.
In setting the grounds for damages or reinstatement, the legal counsel submitted that KPMG not only breached the provisions of the Employment Rights Act, but also its own internal disciplinary procedure. She referred to a UK case, Polkey versus AE Dayton Services Limited at 1987, Industrial Relations Law Report, page 503, House of Lords to strengthen her argument.
“According to the principles set out in the Polkey case, the procedure an employer follows is integral to the issue of fairness. Even if an employee is recalcitrant, he is entitled to procedural fairness. That is, the fourth Schedule must be complied with. Even if the reason is fair, the fact that the procedure was flawed, renders the dismissal unfair,” emphasized Garner.
“The respondent’s actions essentially amounted to the summary dismissal of the claimant. To review the evidence, the same day he received his review [of work performance] was the same day he was given his walking papers in 2013 because the respondent [the company] has not shown and cannot show the proper procedure was followed. It is submitted that the tribunal must order reinstatement or, in the alternative, compensation,” the attorney added.
Garner therefore submitted that her client was unfairly fired and was entitled to the relief sought.
But in her 45 minute rebuttal address, legal representative for KPMG Sherica Mohammed-Cumberbatch made it clear that no matter what label her client may have applied to the nature of Leacock’s dismissal, the Tribunal was the sole determinant for finding the reason or principal reasons.
Mohammed-Cumberbatch noted that there were numerous reasons for Leacock’s termination, including his conduct in persistently refusing to accept feedback from the various managers and his intransigent attitude.
“ . . . The principal reason for the termination of the employment of the claimant relates to the conduct of the employee in persistently refusing to accept feedback from the respondent, to remediate shortcomings in the development of his performance and the claimant’s intransigent attitude to members of the respondent’s management team as it related to such feedback,” she submitted.
The KPMG attorney also listed the consequential loss of confidence in the claimant’s ability to positively adopt the improvements suggested by the feedback, effectively execute the job of business advisor and maintain relations with the management team.
She also told the Tribunal that Leacock had been verbally made aware of his shortcomings and was urged to “pull up his socks” while at the same time being counseled along the way during his two year stint with the firm.
Mohammed-Cumberbatch said that even when a meeting was held and his letter of termination was brought to those discussions, the claimant was given more time to make matters right. She said that if the company had premeditated his dismissal, that meeting which lasted more than an hour, would have been about five minutes.
The lawyer said even if the commissioners accepted that Leacock should be reinstated, the company would want to submit in a separate session why such a move would be impractical. She also noted that if compensation was awarded, Leacock should receive much less than the sum being requested.