GETTING A FAIR SHAKE

A Jpmorgan employee set out to clear her name after being disciplined and dismissed for e-mailing ‘confidential’ company information to her home

It has always seemed a good idea to assume that other people know a great deal more about finance and computers than I do. So it was strange to find that so well-known and highly regarded a firm as Jpmorgan Equities SA should make a pretty basic mistake about both. But perhaps the mistake was less about the technicalities involved in the company’s dispute with an employee, and more about fairness — and not listening.

The employee here is Deanne Gordon, who worked for Jpmorgan as an equity strategist for more than 20 years. She resigned in June 2013 after her father became ill.

Before Gordon left the company, she sent “certain information” to her husband’s computer. While Jpmorgan claimed the material was confidential, she said it was public information.

Ten days before she was due to leave she was disciplined for this “offence” and dismissed.

Determined to clear her name, Gordon asked for arbitration. The commissioner, Vicky Smith, found her dismissal had been “substantively fair but procedurally unfair”.

Gordon then asked the labour court to review and set aside this award, saying she did not get a fair hearing and the award was unreasonable.

One of the reasons she claimed she did not have a fair hearing is that Smith fell asleep during a crucial moment of the hearing. Jpmorgan seems to have conceded that the arbitrator fell asleep. However, Smith said she “momentarily lost concentration”. Her eyes were closed but she was listening. She added that, in any case, she “could have listened” to the recordings later.

Labour court judge Anton Steenkamp quoted a 2014 case in which the arbitrator fell asleep. He added that “perhaps happily” there is little SA case law about such an eventuality — though the supreme court of appeal has quoted an English case in which it was held that if a judge fell asleep it would be counsel’s duty to wake him or her.

In the view of the judge, Smith “nodded off” for no more than “a few seconds or minutes” of evidence and he did not believe this “momentary lapse” deprived Gordon of a fair hearing.

Though the nodding off allegation and other grounds for review were interesting enough, the real question was about the e-mailed documents — equity reports and Excel spreadsheets. Were they indeed evidence of serious wrongdoing by Gordon? Jpmorgan fired her because the documents were “confidential”, but was that so?

No, said the judge: the equity reports turned out not to be confidential — even the company’s key witness, Christian Kern, admitted as much, during the arbitration.

In the public domain

The research reports were “publicly available”, something Kern said he had not realised. He said he had been surprised to learn the previous evening (via documents submitted by Gordon) that key competitors of Jpmorgan, including Standard Bank Global Securities, had access to the reports she had e-mailed home.

What about the spreadsheets? The data in the documents came from public sources such as Bloomberg, contrary to the claims of Jpmorgan and contrary to the findings of the arbitrator. They were “bog standard”, taught at university and obtainable from Google, said the judge.

Moreover, a live link was needed to activate the spreadsheets — and it was not disputed that Gordon never had such a link.

The judge set aside Smith’s award and found Gordon’s dismissal substantively and procedurally unfair. But because she had said she only wanted to clear her name, she was not awarded any compensation — though, and it is no small thing, Jpmorgan must pay the costs.

Perhaps the mistake was less about the technicalities involved and more about fairness — and not listening