The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal has urged the Minister of Labour to provide greater clarity when referring trade disputes to the Industrial Tribunal, branding the present process "inadequate".

Acting appeal justice Milton Evans said it was "of fundamental importance" that the minister specify the precise issues that the Tribunal must resolve given that it has no power to alter the nature of claims referred to it.

He added that it was his "understanding" that the Minister of Labour currently does not provide particulars on employer-employee disputes, but simply supplies the Industrial Tribunal with "all papers" and asks it to resolve the matter.

"It is of fundamental importance... that the minister is clear as to the precise dispute which he is referring to the Tribunal," acting justice Evans wrote in a recent judgment.

He conceded that "this should not be a problem" if the parties involved comply with the Industrial Relations Act, which requires them to provide a written report on all the issues in contention to the Minister, but added that the problem was "magnified" by the law's broad definition of "labour dispute".

"I am given to understand that it is not the practice of the Minister to specify the particular dispute, but to refer all the papers to the Tribunal with instructions to resolve the dispute," acting justice Evans wrote.

"If this is in fact so it is not, in my view, adequate as the conciliation process ought to afford the Minister the opportunity to obtain a good understanding of the nature of the dispute before he refers it to the Tribunal.

"This issue takes on added significance when the dispute at hand relates to the termination of an employee. The questions arise: Is the referral to be with respect to a general dispute relative to his dismissal? Or must the referral be specific as to whether the dispute is with respect to wrongful dismissal and/or unfair dismissal?"

Acting justice Evans's concerns were contained in a unanimous Court of Appeal verdict that overturned an $81,000 Industrial Tribunal award against Atlantis, relating to the "wrongful and unfair dismissal" of an assistant stewarding director.

He and his fellow appeal judges backed the Paradise Island resort's argument that the Industrial Tribunal has no power or jurisdiction under the Industrial Relations Act to change an applicant's original claim, and permit "a new dispute" to be heard.

Yet the Tribunal's vice-president, Keith Thompson, had allowed John Fox to amend his original claim from alleged "wrongful dismissal" to include the alternative claim of unfair dismissal. The Tribunal found in the ex-Atlantis employee's favour on both counts, but only awarded compensation for unfair dismissal.

Setting out the background to the dispute, the Court of Appeal said Mr Fox had been "principally responsible" for handling payroll and entering the hours each employee worked into Atlantis's system.

"This was clearly an important position which was required to be held by someone in whom the company had imposed confidence and trust," the court noted. However, Mr Fox was then accused by other employees of showing favouritism towards a female dish washer.

An anonymous letter, accusing Mr Fox of "romantic involvement" with the dish washer and other alleged offences, was submitted to Atlantis management. As a result, he was instructed not to edit or fill in time for Ms Rolle.

"This instruction had been issued about a year before the respondent's [Mr Fox] termination, and was never challenged by the respondent by way of the appellant's [Atlantis] internal grievance procedure or otherwise," the Court of Appeal said.

"There is no dispute between the parties that the instruction had been given to the respondent. The respondent sought to assert at the hearing that it was only a 'request', and that he did not take it seriously as [Gary] Gillihan (an Atlantis senior director) had 'never written to him about it and', in his view, it wasn't said in a serious manner'.

"In cross-examination, the respondent agreed that Mr Gillihan could give him any instructions which were reasonable and lawful in the course of his duty, and not everything was reduced to writing. Additionally, the respondent admitted that receiving a request and an instruction from his senior director are both the same."

Atlantis discovered that on July 10, 2011, Mr Fox had breached his instructions by filling in time for the female dish washer. This occurred after she said she felt sick, and was going home.

A dispute occurred over when she left the resort's premises, and the Court of Appeal said: "The respondent [Mr Fox], notwithstanding the earlier instructions without confirming what time she left; without requesting that she swipe out; without putting any form of explanation in the Kronos system for Ms Rolle's failure to swipe out; filled in a departure time in the Kronos system of 3pm, thereby entitling Ms Rolle to a full day's pay.

"It is noteworthy that.... when asked in evidence-in-chief to explain why he did not consider his conduct grossly insubordinate in the way he handled Ms Rolle, the respondent stated that he was responsible for payroll and he took her word because he considered her to be an honest employee. This is a most egregious statement as it goes to the heart of dereliction of duty."

Mr Fox was suspended for 10 days as Atlantis conducted an investigation, and then given an opportunity to provide an explanation. The resort found him guilty of "gross misconduct" and terminated his employment, with a Review Committee subsequently confirming its action was justified.

Assessing Atlantis's appeal, acting justice Evans agreed with submissions by Atlantis's attorney, Ferron Bethell of Harry B Sands & Lobosky, that the Industrial Tribunal has no power under the Industrial Relations Act to amend disputes referred to it by the Minister.

He ruled that it had "simply had no jurisdiction to do so", and also failed to follow its own rules and procedures in allowing Mr Fox to change his original claim. The Court of Appeal also found that the Industrial Tribunal "conflated" the issues of wrongful and unfair dismissal, noting that they were two different issues dealt with by separate sections in the Employment Act.

While the Industrial Tribunal had given great weight to Atlantis's failure to probe the anonymous letter's allegations, the Court of Appeal said it was "undisputed" that Mr Fox had breached his employer's instructions.

"Contrary to the view held by the Tribunal that the instruction given was a very informal kind of casual instruction, the evidence was that there was no complaint and Mr Gillihan's instructions was obeyed for over a year," the Court of Appeal found.

"It also inconsistent with the assertion by the respondent that he didn't think it was a serious instruction. The evidence of the appellant was that it was important to the organisation that the perception of favouritism in the work place be addressed so as to avoid potential disruption in the workplace."

As a result, the Court of Appeal found that the "wrongful dismissal" claim cannot be sustained.