Eustace ordered to pay severance to former secretary

Leader of the Opposition Arnhim Eustace has been ordered to compensate his former secretary $16,199.99, as he failed to prove that when he dismissed her, he did so for good cause.{{more}}

Hearing officer Cecil M. John, in a letter, obtained by SEARCHLIGHT, and dated September 30, 2013, said that the Opposition Leader must, by Friday, October 18, 2013, pay Rishatta Nicholls severance payment for 12 years service.

Nicholls, who had been employed as secretary to the Leader of the Opposition since August 1, 2001, was dismissed on March 28, 2013, for, according to her termination letter, failure to prepare the Vote Book, loss of confidence by the Opposition Leader in her, and for using part of contributions donated to Elwardo Lynch “for [her] own purposes”.

“I have now decided that this state of affairs cannot continue. I hereby terminate your employment as Secretary to the Leader of the Opposition with immediate effect for cause. You will be paid one month’s salary in lieu of notice and your leave entitlement,” the letter, signed by Eustace said.

Nicholls took the matter to the Department of Labour, and on September 26, 2013, Hearing Officer Cecil John adjudicated the dispute. Nicholls represented herself, while Eustace was accompanied to the hearing by Counsel Bertram Commissiong QC and advisor St Claire Leacock.

In her statement at the Hearing, Nicholls testified that when she was hired by Eustace, she was not given a job description or an employment letter, and her last salary was $2,700 a month. She said during the time of her employment, she was suspended once, in 2006, for two weeks, without pay. That suspension, she said, disappointed her, because she was “never asked about what happened.”

Failure to prepare the Vote Book

Eustace testified that prior to 2011, all expenditures for the Office of the Leader of the Opposition (the Office) were sent to the Clerk of the House. After the system changed whereby quarterly allocations were paid to the Office, they were required to make available to the Ministry of Finance, what their quarterly expenditure was likely to be.

“This meant that our role had changed substantially in relation to our accountability,” Eustace testified.

“When that was done, I realized that we had to make some changes in the way we did things in the Office. Shortly after that, Mrs. [Doris] McIntosh was elected as Assistant General Secretary of the Party. Given her Public Service experience, I discussed with her the use of the Vote Books as a way of establishing accountability. She brought a Vote Book to the Office. It was given to Mrs Nicholls and I spoke to her about its use. She insisted that the book was not relevant and she made no attempt to use it. It somehow disappeared, so I got Mrs McIntosh to bring a second one, and again it was not used. So when it came to signing the cheques for the end of March, I said that I was not signing any.

“I had a meeting in my office with Mrs McIntosh and Mrs Nicholls, and also Mr [Adison] Thomas, the Research Officer. In that meeting, I was presented with the records as prepared by Mrs Nicholls without the Vote Book. It was agreed at the meeting that certain areas of the Vote Book were not relevant and that it would be filled out to the extent that it should. A day or two later, that was done and I signed the cheques. It has taken more than a year to get that implemented. It was a year after I as Leader had made that decision,” Eustace said.

In her sworn statement, Nicholls said not having been a civil servant, she was not familiar with the use of Vote books. She said the books were brought to the Office by Doris McIntosh in late 2011, but because McIntosh was not associated with her job, she “avoided taking instructions from any such person.”

“I depended on the Leader for such instructions. I told her (McIntosh) that the Vote Book and what the Government did was different from what we did. On 26th March 2013, the Hon Leader asked me if I had written up the Vote Book. I replied in the negative and he walked off. I turned to the Research Officer, Mr Adison Thomas to take to the Leader what I had done instead of using the Vote Book. Mr Thomas returned and said that Mrs McIntosh had called me, and she wanted the Government Estimates. No specific year was mentioned and I provided the one that was available. She claimed that the information required was in the Estimates under the Heading “Leader of the Opposition.” I showed her that no such information was there and she replied that I should just forget about the headings in the Vote Book and copy the information I had in the Note Book into the Vote Book so that the Leader could sign the cheques. Before that exercise was complete, the Leader left.”

The Hearing Officer found that prior to the change in February 2010, in the way funds were allocated from the Treasury for use by the Office of the Leader of the Opposition, a Note Book was used to record expenses. He said from the evidence given, the Vote Book was not introduced to Nicholls from the time of the change, hence she continued with her Note Book.

“Old habits die hard, hence it should have been a matter of priority by her employer that she be introduced from the outset, to the new method of accounting. While assistance from Mrs McIntosh may have been useful, it should have been the Treasury and not Mrs McIntosh who should have provided the assistance, and arrangements should have been made for that to take place.

“The evidence points to the fact that the impasse which occurred two days before the dismissal was connected to the above-mentioned failure, and that it provided the trigger for the dismissal. Although the matter was resolved in short time, and the cheques were eventually signed, it is obvious from the tone of the letter that the Honourable Leader’s anger persisted and the decision to terminate was taken in anger.”

Loss of confidence in Mrs Nicholls

In Nicholls’ March 28, 2013 letter of dismissal, Eustace said “When I left the office after out last meeting, you made a lot of negative comments about me. You have made negative comments about me over the years. I have now lost complete confidence in you as my Secretary. My confidence for some time now has waned to such an extent, that I do not ever, give you my either cell phone number or do I give you confidential correspondence to type.”

Nicholls, in response to Eustace’s claims, said in her sworn statement at the Hearing, “such accusations have been going on for a number of years and I was getting fed-up and annoyed. It was tarnishing my character as a young person. So at one time, it became such a serious concern to me that I had to go to a lawyer to try to get the matter settled.”

Eustace however said that since Nicholls was suspended in 2006, her attitude in the office changed drastically.

“She felt that the office attendant and not her should have been suspended. The last straw for me was when she went to the Honourable Prime Minister to discuss the finances of the business of the Opposition. Given the nature of competitive politics that was the end of my confidence in her.”

However the Hearing Officer noted that there is no evidence that since the suspension, that any warning, whether oral or written, was ever issued up to the time of Nicholls dismissal in March 2013.

“Therefore, the Hearing Officer does not have any ground on which to base this change as a matter for consideration.”

John also said it is understood that the Leader would have been suspicious and uncomfortable about Nicholls’ visit to the prime minister, but there is no evidence that he knew as a fact what was the purpose of the visit.

“The Petitioner (Nicholls) has given a vastly different reason, and it is only the Honourable Prime Minister who can validate the matter. Needless to say, the Petitioner’s visit cannot be deemed an act of misconduct.

“As a factor in his loss of trust in the Petitioner, the Respondent (Eustace) has labelled the visit as ‘the last straw’, but the Hearing Officer cannot be expected to accept it as a factor in his decision-making.

Misappropriation of funds belonging to Elwardo Lynch

Eustace testified that after noticing how Lynch, a former host on the New Democratic Party’s (NDP) New Times radio show, was driving, he realised that Lynch had a problem with his eyes. He said he then found out that Lynch had already been advised by a doctor to seek ophthalmologic attention abroad. Eustace said while Lynch was away, the Party’s Leadership organized the process of raising funds on his behalf and that the money would be placed in Lynch’s bank account.

“Sometime after his return, I was informed that moneys contributed to him did not get to his account. He (Lynch) said he was told by Mrs Nicholls that about $900 was missing and that he was being repaid on a monthly basis. I recall that when we came to the conciliation meeting at the Department of Labour that Mrs Nicholls told the Deputy Labour Commissioner that the Office was broken into and the money went missing. That was the first I ever heard of the office being broken into. I recall saying in the meeting that if it were so, it would not have been her responsibility to make the repayment,” Eustace testified.

Nicholls however said when Lynch’s spouse told her of Lynch’s eye problems, she drew the matter to the attention of the leader of the opposition. She said Lynch had started a medical appeal and established his own Bank Account.

“I never received any instructions from my employer regarding Mr Lynch. Mr Lynch came to asked me to collect donations on his behalf and pay them into the account, and so I did. On 22nd May 2012 Dr the Honourable Godwin Friday delivered to Mr Allan Cruickshank an envelope containing EC$754 and US$60. That envelope and its contents I left on my desk and later discovered it was missing. I accepted responsibility and repaid Mr Lynch the amount. I further drew it to the attention of the Honourable Leader,” Nicholls stated.

In his observations, John said, “…there is no doubt that the Party’s leadership was responsible for launching the Elwardo Lynch appeal fund and that as Secretary to the Party Leader, the Petitioner would inevitably have had a role to play at least in the receipt of funds. Of concern to the Hearing Officer is the accountability for the sum of $954.00 under reference. The Petitioner stated that she left on her desk an envelope containing the amount, that she later discovered that it went missing, and she claimed responsibility and has since repaid the amount. The Respondent stated that in his presence, she told the Deputy Labour Commissioner that the Office was broken into and that the money went missing.

“The Hearing Officer notes, however, that the Deputy Labour Commissioner’s statement on the subject in her Case Report recorded on file, is consistent with the account given by the Petitioner. The result of the conflict of statement is that the allegation has not been justified,” John said.

“It is rather curious that the letter from Elwardo Lynch, perhaps intended to shed light on the matter, was produced after the fact. It is dated 17th April 2013. The dismissal was effected on 28th March, 2013,” the Hearing Officer noted.

Decision by Hearing Officer

The Hearing Officer said with the elimination, for lack of evidence of the second (loss of confidence) and third (misappropriation of funds) purported reasons for the termination of the services of the Petitioner, the Hearing Officer is left with the first (the Vote Book).

“The question is whether it has met the standard for termination pursuant to section 9(2)(a) of the Act.”

Section 9(2)(a) of the Protection of Employment Act states that “The service of an employee shall be deemed to be terminated for good cause where the employee has been found guilty of misconduct in or in relation to his employment which is of such a nature that it would be unreasonable to expect the employment relationship to continue;”

“The Hearing Officer has already shown why he is of the opinion that the Petitioner cannot entirely be blamed for the impasse which took place on 26th March 2013 and which triggered termination. The evidence does not point to defiance for more than two years, as argued by Counsel for the Respondent. It points to a level of reluctance which could have been controlled by the kind of management skills which the Honourable Leader was capable of brining to bear on the situation if certain prejudices did not exist. Such prejudices are outlined in the [dismissal] letter, and reinforced in the statement on “the last straw”. So the Hearing Officer has not been presented with the grounds on which to find the Petitioner guilty of the kind of misconduct implied by section 9(2)(1) of the Act.

“And neither has he found her guilty of the kind of misconduct specified in section 15, because what was so serious about anything that was presented at the hearing? What detrimental effect was shown that she had on the Party? There was no adverse audit report on the Party’s use of its allocations, nor any suspension of funds pending any sort of rectification. It was not shown that the Party encountered any difficulty in defraying its expenses, that its fortunes suffered or that its image was tarnished. The fact is that no evidence was adduced to prove that the petitioner has had a detrimental effect on the Party. Seven years of continuous service following a mild suspension in 2006 is depictive of an asset rather than a detriment.

“And finally, the making by the Respondent of Payment in lieu of notice, has been interpreted to mean, in accordance with section 14 of the Act, that no dismissal has been made pursuant to section 9 or 15 of the Act.

Section 15 of the Act states “An employer may summarily dismiss without notice or payment of any severance pay an employee who is guilty of serious misconduct pertaining to his employment if the conduct is of such a nature that it would be unreasonable to require the employer to continue the employment relationship.”

The Hearing Officer ordered that Nicholls’ severance payment is to made via the Labour Commissioner.