Split decision

A former deputy managing director at the Jamaica Urban Transit Company Limited (JUTC) has secured the right to challenge the Office of the Director of Public Prosecutions’ (ODPP) decision not to pursue criminal charges against the company over a disputed $2 million deduction from her wrongful dismissal award.

Selena Mohammed Wilson was awarded $11.6 million by the Industrial Disputes Tribunal (IDT) in August 2021, following her dismissal in April 2019 after just over a year at the state-run bus company. However, the JUTC withheld approximately $2.2 million from the final instalment, citing tax deductions, leaving an outstanding balance.

In April 2022, the IDT clarified that Wilson was entitled to the full award, but the balance remained unpaid.

Wilson then sought criminal action under the Labour Relations and Industrial Disputes Act, and the matter was referred to the ODPP.

In a letter dated October 6, 2022, the ODPP declined to recommend charges, stating that there was insufficient evidence of criminal wrongdoing.

“Having perused the documents submitted hereto, there is nothing to suggest to the satisfactory standard required that any officer of the JUTC is criminally responsible,” the ODPP said.

The office further advised that civil proceedings would be more appropriate.

“The intent of the complainant is to recover the full sums owed to her by the JUTC. Hence, criminal prosecution of the company may not be the best avenue to plod,” the letter added.

Wilson twice sought permission in the Supreme Court to challenge that decision but was denied.

Justice Wolfe-Reece ruled that there were no arguable grounds with a realistic prospect of success.

JUDGEMENT

However, the Court of Appeal has now overturned that decision, granting Wilson leave to pursue judicial review. In its judgment delivered last month, the court held that the ODPP’s decision could be subject to review.

“Leave for judicial review should have been granted. I also find that the ODPP issued what reasonably amounted to a directive to the JCF (Jamaica Constabulary Force) that the JUTC should not be charged and that decision is subject to judicial review,” the appellate judges said.

Delivering the majority ruling, Justice Lorna Shelly-Williams found that the lower court erred in concluding that Wilson had not demonstrated an arguable case. She said there was sufficient material for the ODPP to assess whether any company officer may have been liable.

“The termination occurred in circumstances in which the managing director was the only employee of the company superior to the appellant, and with his unchallenged declaration to her that he was going to terminate her employment, enough facts were before the DPP from which inferences could be reasonably drawn as to whether anyone ‘consented to, connived at, or did not exercise reasonable diligence as he ought in the circumstances to have exercised to prevent the offence … ’,” she stated.

However, the decision was not unanimous.

Justice Nicole Foster-Pusey agreed with the lower court’s refusal to grant leave.

“I believe that the appellant has not established that the learned judge erred in her reasons and ruling. Furthermore, in my view, the appellant has not established arguable grounds for review with a realistic prospect of success.

“It is highly unlikely that the appellant will be able to successfully argue that the DPP’s decision not to direct that any officer of the JUTC be charged was illegal, irrational, or wrong in law,” she said, noting the explanation that there was insufficient evidence to establish criminal responsibility on the part of any JUTC officer.

She further stated that the police did not require the ODPP’s permission to charge the company.

Wilson’s attorneys argued that the managing director, as the company’s “directing mind”, was responsible for ensuring compliance with the IDT award and was directly involved in her dismissal.

The ODPP maintained that there was no evidence to support criminal liability.

tanesha.mundle@gleanerjm.com