Former Jerky’s manager awarded $5 million for ‘unjustifiable’ dismissal
THE INDUSTRIAL Disputes Tribunal (IDT) has awarded a former restaurant manager $5 million for her “unjustifiable” dismissal after its first decision in 2020 affirming her termination was overturned by t he Supreme Court.
The IDT is a quasi-judicial body established by law to resolve disputes between workers and their employers.
Melisa Donalds was the restaurant manager at Jerky’s Bar & Grill in Montego Bay, St James, for six years before her employment was terminated “effectively i mmediately” on August 16, 2016 via a letter signed by the proprietor of the eatery, Tor Moe, according to documents submitted to the IDT.
She claimed that her dismissal came after she complained for years that “health hazards” at the eatery were “negatively” impacting customers and employees. She also requested a second salary increase in a month.
However, Moe explained, during the 2020 hearing held in Montego Bay before a three-member panel of the IDT, that the termination was “not a performance issue or grievance”.
Instead, Moe said he became “frustrated with a lot of things that [Donalds] was doing that seemed to indicate that she was not happy”.
The last straw, he claimed, was when Donalds covered the shift of another employee and wanted her normal salary as well as payment at her manager’s rate for three extra shifts that she covered.
Moe also noted that on August 3, 2016, the company increased her salary by 50 per cent, moving it to $3.5 million, retroactive to July 1 that year.
He acknowledged that he became frustrated with her actions.
He told the three-member panel that he sought legal advice about the dismissal after Donalds, through her attorneys at the time, Nigel Jones & Company, wrote to him challenging the decision to end her employment.
SOUGHT TO CORRECT THE WRONG
Moe said the attorney he consulted advised that the termination was “not carried out properly and they needed to correct the error”.
The restaurant sought to correct the “wrong”, he said, via a letter dated September 8, 2016, which indicated that Donalds had been “reinstated” and that she should report for work on September 12 “with full pay and benefits as at August 17, 2016”.
Donalds did not show up for work on September 12. Instead, her attorneys wrote to Moe indicating that she had declined the offer of reinstatement.
“We view the same as nothing but an endeavour by the company to right its wrongs and thereafter terminate our client in any event,” the letter said.
Moe denied the assertion, countering that Donalds “unreasonably” rejected the offer of reinstatement and “abandoned” her job.
The three-member IDT panel agreed, ruling on November 24, 2020, that her decision not to show up for work on September 12 “was sufficient to infer her intent not to return to work and thereby abandoning her job”.
“Melisa Donalds abandoned her job, thereby repudiating her contract of employment,” the IDT ruled at the end of the hearing.
The panel explained that it rejected Donalds’ assertion that she would have been fired after resuming her duties as a “reasonable” basis for declining the company’s offer of reinstatement.
It cited a legal precedent set by the Jamaican Supreme Court, which indicates that a worker may not “unreasonably” refuse an offer of reinstatement and instead claim compensation where it is clear that the employer is genuinely trying to right a wrong of unfair dismissal.
The panel said it accepted that the reinstatement offer by the company was “genuine”, noting that it would have restored Donalds to her “original position” without any loss of salaries and benefits.
“No evidence was put forward to the contrary,” it noted.
ARGUMENTS WERE FLAWED
However, Donalds hired new attorneys, Gavin Goffe and Jovan Bowes from the law firm Myers Fletcher & Gordon, who filed a lawsuit in the Supreme Court challenging the ruling by the threemember IDT panel.
They argued that the panel erred in law when it concluded that their client’s refusal of the reinstatement offer and refusal to return to work amounted to abandonment of her job.
In overturning the decision of the IDT panel, Supreme Court judge Justice Tara Carr noted that it is “settled law” that a contract of employment, once terminated, cannot be “unilaterally” restored.
“In this case, there was no acceptance of the offer of reinstatement made by the employer. In fact, there was an outright rejection of such offer,” Carr said in her 10-page judgment handed down last April.
Further, Carr found that the application of the legal precedent cited by the three-member panel was “flawed”.
“The tribunal had no basis in law to find that the claimant [Donalds] was reinstated by the company. By extension, therefore, there was no basis to substantiate the finding that she had abandoned her job,” she noted.
Carr ordered that the case be sent back to the IDT to be heard by a different panel.
At the end of a second round of hearings last Tuesday, a different three-member panel of the IDT concluded that the restaurant manager’s dismissal was “unjustifiable”.
“From an objective view, and more so, in light of the opinion of [Justice] Carr, Miss Donalds’ termination would remain in effect as the offer of reinstatement was not accepted,” they wrote before ordering that she should be paid $5 million in compensation.
Moe did not participate in the second IDT hearing despite numerous invitations, including one on November 9, 2023 when the hearings began, the panel indicated in their decision.