Digicel Wins Appeal as Court Finds Industrial Court Denied Company Fair Hearing

The Court of Appeal has overturned a ruling by the Industrial Court that ordered Digicel to pay EC$176,500 to a former employee, finding that the lower tribunal denied the company a fair hearing when it proceeded with the trial in the absence of Digicel’s attorney.

The appeal court’s decision, delivered on May 19, reversed the Industrial Court’s order made on 20 September 2023 against Digicel in a long-running unfair dismissal claim brought by former employee Karl Skepple.

Skepple filed a complaint in the Industrial Court in October 2016, alleging he was unfairly dismissed in August 2015 following allegations by a colleague that he had made inappropriate sexual advances toward her.

Digicel conducted a disciplinary hearing on July 31, 2015, and terminated Skepple by letter dated August 6, 2015, stating that it accepted the allegations made against him.

The matter took years to receive a hearing with the Industrial Court issuing multiple orders requiring Digicel to file witness statements, particularly in May 2021, March 2023 and April 2023, with which Digicel failed to comply.

A hearing date was eventually set for September 20, 2023, with notice served on Digicel’s attorney by email on September 13, 2023, giving him only five clear days of notice.

Digicel’s attorney wrote to the Industrial Court requesting an adjournment, citing scheduling conflicts with matters before both the Criminal and Civil Divisions of the High Court on the same date.

He also informed opposing counsel, Kendrickson Kentish, of the conflict on September 18. Kentish told the court he refused to consent to any adjournment and that the attorney needed to make his own arrangements.

The Industrial Court proceeded with the trial, citing the absence of Digicel’s counsel or any company representative, the history of multiple adjournments, and Digicel’s repeated failure to file witness statements.

The court found Skepple was unfairly dismissed and ordered compensation totalling EC$176,500, including EC$96,000 for loss of protection against unfair dismissal, EC$50,500 in lost earnings, EC$20,000 in exemplary damages, EC$5,000 for loss of fringe benefits, EC$2,500 for loss due to the manner of dismissal, and EC$2,500 in costs.

Digicel appealed, arguing the Industrial Court had denied the company its constitutional right to a fair hearing.

The appeal court found that the Industrial Court never substantively engaged with the reasons Digicel’s attorney had provided for the adjournment request.

The transcript of proceedings revealed that the President of the Industrial Court focused primarily on whether opposing counsel Kentish had received the correspondence and whether he consented to the adjournment, rather than on the merit of the request itself.

“The tribunal was required to consider the substance of the adjournment request and the overall interests of justice, which extend beyond the presence or absence of such concurrence by opposing counsel,” the judgment states.

The court also found that the five days of notice given to Digicel fell short of the required standard.

The judgment acknowledged that Digicel’s conduct during the proceedings was not without fault.

The company’s failure to file its witness statements on multiple occasions and its attorney did not make a formal application for the adjournment.

However, the court held that these shortcomings did not extinguish Digicel’s right to cross-examine Skepple or make legal submissions, entitlements the appeal court described as fundamental.

“The right to legal representation and the right to be heard are fundamental entitlements that a court must consider even where the conduct of a party has been discourteous,” the judgment reads.

The Court of Appeal set aside the Industrial Court’s order, remitted the matter to the Industrial Court for rehearing before a differently constituted tribunal.