Andrew Robinson v National Irrigation Commission Ltd
| Jurisdiction | Jamaica |
| Judge | David Batts |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] JMSC CIVIL 19 |
| Docket Number | CLAIM NO. 2010 HCV 4652 |
| Court | Supreme Court (Jamaica) |
| Date | 14 February 2013 |
[2013] JMSC CIVIL 19
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Justice David Batts
CLAIM NO. 2010 HCV 4652
Derrick McKoy and Carlton Williams instructed by Williams McKoy & Palmer for the Claimant
Wenthworth Charles and Floyd Greene instructed by Wentworth Charles & Company for the Defendant
Employment — Judicial Review — Internal Enquiry — Whether Natural Justice Applies — Whether Remedy of Judicial Review Available.
By Order of this court dated the 28 th day of October 2010 leave was granted at
an ex parte hearing for judicial review of:
a. ‘The conduct and proceedings of the oral enquiry established by the respondent to enquire into the charges set out in letter dated 24 th June 2010 laid out against the appellant’:
b. ‘Of the decision of the Respondent made on the 24 th June 2010 to terminate the employment of the Applicant.’
Pursuant to that permission, the claimant on the 10 th November 2010 filed a fixed
Date Claim Form in which the following relief was claimed:
- Certiorari to quash the decision of the Defendant made on 24 th June 2010 to terminate the employment of the applicant. 2 A DECLARATION THAT THE Defendant's Disciplinary Code, particularly at section 9.4 thereof, and in its failure to provide for a process of appeal from a decision made at an oral enquiry, contravenes chapter 10 Regulation 10.4 of the Government of Jamaica Staff Orders for the Public Service 2004 , and is therefore void. 3 A DECLARATION that any oral enquiry or proceedings including the oral enquiry which was held on 10 TH May 2010 into the charges laid against the claimant, and which is based upon the application of the Defendant's Disciplinary Code, is null and void, as being in breach of Chapter 10 Regulation 10.4 of the Government of Jamaica Staff Orders for the Public Service 2004. 4 A DECLARATION that the decision by letter dated 24 th June 2010 to terminate the employment of the claimant was tainted by actual or perceived bias, and is therefore void. 5 A DECLARATION that the proceedings of the oral enquiry set up by the defendant to enquire into the charges laid against the claimant was tainted with bias. 6 A DECLARATION that the decision by letter dated 24 th June 2010 to terminate the employment of the claimant is null and void, as being in breach of Section 9.1 of the Defendant's Disciplinary Code. 7 A declaration that the purported oral enquiry held on the 10 th of May 2010 in which the applicant was denied legal representation was in breach of the principles of natural justice and therefore void. 8 Any further order, relief and/or directions as this court deems fit in the circumstances.
That claim is supported by an affidavit of Andrew Robinson filed on the 10 th
November 2010.
On the 29 th November 2010, the defendant filed an acknowledgement of service by its attorneys-at-law indicating an intent to defend the claim.
On the 9 th December 2010 at the first hearing date, the Honourable Mr. Justice Brooks made Case Management Orders including among other things an Order for specific disclosure. The defendant was represented at that hearing.
On the 7 th January 2011, the defendant filed the affidavit of Milton Henry in response to the affidavit of Andrew Robinson. Having responded in detail to each factual averment, the affidavit ends at paragraph 40 with the words:
‘As it (sic) regards to paragraph 2, I humbly ask that this Honourable Court dismiss the application for Judicial Review as I have been advised and verily believe that the application is misconceived and is an abuse of the court's process.’
On the 19 th May 2011, an application for further specific disclosure by the claimant came on for hearing and the court made an Order which vacated an earlier trial date and directed disclosure of certain minutes of Board Meetings. Orders for the filing of skeleton arguments were also made. On the 7 th October 2011, a second affidavit of Andrew Robinson responding to the affidavit of Milton Henry was filed.
The claimant's skeleton arguments were filed on the 12 th October 2011. On the 14 th October 2011, the defendant filed its skeleton arguments, paragraphs 1 to 20 of which contained as a preliminary issue, the submission that the claim ought to be dismissed in limine because this court has no jurisdiction.
On the 27 th October 2011, the matter was adjourned to the 9 th February 2012 when it was further adjourned to the 17 th May 2012. The Minute of Order discloses no reason. On the 17 th May 2012 it was again adjourned to the 20 th November 2012 with a direction that the bundles were to be located and placed on file. On the 20 th November 2012 it was adjourned to the 22 nd November 2012. On this latter date the matter commenced before me.
On the 22 nd November 2012 and prior to the commencement of the hearing both parties pointed out to the court that the law firm at which I had previously been a partner had acted in an advisory position to the defendant prior to the commencement of legal action. Each counsel indicated they did not wish me to recuse myself and urged that the matter be started. I of course had no prior knowledge of the matter and until then had not realized that the National Irrigation Commission Ltd. had been a client of the firm. Given the time since the filing of the action and the fact it had been previously adjourned as well as the remonstrations of both parties, I decided to commence hearing the matter.
The evidence was by affidavit and there was no request by either party for cross-examination.
The claimant's evidence may be summarised as follows:
a. Until 30 th June 2010 he had been ‘engaged’ to the defendant as a Director of Finance and Corporate Planning.
b. Until his termination, his performance had been exemplary. He was employed in 1994 on a contractual basis and in 1995 was appointed to the pensionable post of corporate accountant. He was later promoted to chief accountant and then director finance and corporate planning a position held for 10 years. He has acted as managing director and chief executive officer. In 2009 his last performance appraisal occurred and he was given an overall ‘above average’ rating.
c. By letter dated 2 nd August 2009, the defendant's Board of Directors wrote to the claimant as follows:
‘Dear Mr. Robinson,
The Board of Directors of the National Irrigation Commission Ltd., at its meeting held on August 12, 2009 unanimously voted on a motion of no confidence in you as Director of Finance and Corporate Planning. With this in mind, I have been instructed by the Board to advise you to proceed on leave with immediate effect August 13, 2009.
The Board will communicate with you as soon as all evaluations are finalized and decisions taken.
Yours truly
National Irrigation Commission Ltd
Oliver Nembhard Chairman’
d. On the 17 th August, the claimant wrote to the Permanent Secretary in the Ministry of Agriculture. He did this he says because the defendant ‘reports’ to the Ministry of Agriculture. In that letter he sought the ministry's intervention.
e. By letter dated 9 th November 2009, the defendant wrote to the claimant outlining certain charges against him ‘in accordance with clause 7.1 of the Commissions Grievance Procedure and Disciplinary Code. The letter requested the claimant's written reply to the charges within seven (7) days, and indicated that a failure to reply within the time-frame will mean:
‘The Board will proceed to make its determination on the matter without considering any input from you.’
This letter was also under the claimant's signature.
f. On the 16 th November, the claimant wrote a detailed response to the charges. In addition to answering the allegations, the claimant in that letter requested sight of certain documentation and indicated his intention to rely on sections of the Commissions Grievance Procedure and Disciplinary Code.
g. The defendant's response was by letter dated 9 th April 2010 which stated:
April 9, 2010
Mr. Andrew Robinson
7 Executive Gardens
Willowdene
Spanish Town
St. Catherine
Dear Mr. Robinson
Re: Disciplinary Action for Alleged Performance Issues
Reference is made to all our earlier correspondence concerning the above captioned and your response dated the 16 th November 2009. After reviewing your response and other documentations attendant to the matters at hand, disciplinary proceedings have been instituted in respect of the following charges:
CHARGES
1. Unsatisfactory Performance
Particulars : That you failed to advise the Board of the accurate status of the NIC's Fixed Assets.
2. Unsatisfactory Performance
Particulars : That you breached the Procurement procedures by fragmenting the purchase (breaking up of invoices) to avoid the need for approval of the Board regarding NIDP motor vehicle purchases.
3. Unsatisfactory Performance
Particulars : That you used IDB funds to disburse payments in relation to NIDP Motor Vehicles when you were advised to use GOJ funds.
4. Unsatisfactory Performance
Particulars : That you failed to provide the Board with requested information in a timely fashion.
5. Breach of Clause 4.4(v) of the Staff Orders for the Public Service.
Particulars : That on the 12 th of August 2009 you had discussions with the news media on NIC staff matters contrary to clause 4.4(v) of the Staff Orders for the Public Service
Oral Enquiry
As per your election in your response for an oral enquiry to be conducted, I have appointed Mrs. Deirdre English Gosse, Director of Corporate and Legal Services to conduct same. Mrs. English Gosse will inform you of the date, time and place of the hearing...
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