Court

DeSilva loses wrongful dismissal case

  • No show: Zane DeSilva’s failure to appear before a tribunal was central to the judge’s ruling

Cabinet minister Zane DeSilva lost a court battle with his sister-in-law and niece after it was ruled that his company wrongfully fired them.

The Supreme Court upheld a decision by the Employment Tribunal that Island Construction was wrong to dismiss Barbara Phillips and Rebecca Phillips over allegations of theft and dishonesty.

Archibald Warner, the counsel for Mr DeSilva and the company, argued that the tribunal should have pushed back their hearing until after a police investigation could be carried out.

But the request for an adjournment was denied and, despite an invitation to make further applications in person, Mr DeSilva and his counsel did not attend the hearing.

Puisne Judge Shade Subair Williams said the failure of the Minister of Tourism and Transport and his company to appear at the tribunal meant they were “hardly entitled to later complain” that they did not get a fair hearing.

Mrs Justice Subair Williams supported the decision of the tribunal in written reasons delivered on July 29.

She said: “It is difficult to envisage what kind of evidence would have been available to the tribunal had they granted the appellant’s adjournment request.

Mrs Justice Subair Williams added: “Equally, it appears that the tribunal was not given any indication by the appellants on the likely time frame needed to resume a hearing if the matter adjourned.

“Perhaps these are matters which might have been made clearer had the appellants and/or their counsel sensibly accepted the opportunity to appear before the tribunal in person to address the tribunal on their request.”

Mrs Justice Subair Williams concluded: “Having relinquished the opportunity to appear, and having wilfully absented from the full hearing which followed, it is hardly open to the appellants to now complain that they were deprived of a fair hearing, based on an adjournment refusal.”

Counsel for the Phillipses were contacted, but did not comment by press time last night. Mr DeSilva declined to comment on the matter, but indicated that an appeal against the decision would be launched.

According to the written reasons, published online this week, Island Construction fired the pair on April 27 last year on the grounds of serious misconduct, making accusations that one stole gas and received money for unworked hours, and the other acted dishonestly. The mother and daughter brought the matter to the employment tribunal and, through lawyer Peter Sanderson, argued they had been wrongfully dismissed.

The tribunal held a hearing on December 4, 2018, and ruled they were wrongfully dismissed.

In the Supreme Court, Mr Warner argued Mr DeSilva and Island Construction were deprived of a fair hearing, but there were arguments about what, if any, police investigation was under way.

Mrs Justice Subair Williams wrote: “Peter Sanderson, counsel for the respondents, expressed grave doubt about the activeness of an ongoing investigation and informed the court that his clients have never even been approached by police in relation to their employment.

“On the return date for the continuation of this appeal hearing, Mr Warner shared that he had spoken with Police Constable Pitt who advised that the police investigation was under way and that there would likely be an arrest. Mr Warner himself described this information as terse.”

Mr Warner also argued the tribunal wrongly accepted the Phillips’s version of events without making a “full enquiry” about the complaints against them. But Mrs Justice Subair Williams said: “Where an employer elects not to appear for the final hearing before a tribunal, that employer is hardly entitled to later complain that the tribunal failed to intervene with questions in the examination of a witness.

“It’s obviously correct that the tribunal had an infallible duty to ensure that it conducted the proceedings fairly.

“In my judgment, the fairness of the proceedings was not compromised by the tribunal’s acceptance of the employee’s uncontroverted evidence.”

She dismissed the appeal by Island Construction and Mr DeSilva, and affirmed the decision of the Employment Tribunal.

To view the judgment of Puisne Judge Shade Subair Williams in full, click on the PDF link under “Related Media”

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