Board of Management of Bethlehem Moravian College v Dr Paul Thompson and Another

• Jurisdiction: Jamaica
• Judge: Morrison JA (Dissenting),Phillips JA,Lawrence-Beswick JA (AG),Morrison JA
• Judgment Date: 10 July 2015
• Neutral Citation: [2015] JMCA Civ 41
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 89/2012 CONSOLIDATED WITH SUPREME COURT CIVIL APPEAL NO 96/2012
• Date: 10 July 2015

[2015] JMCA Civ 41

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Lawrence-Beswick JA (AG)

SUPREME COURT CIVIL APPEAL NO 89/2012

CONSOLIDATED WITH

SUPREME COURT CIVIL APPEAL NO 96/2012

Between

The Board of Management of Bethlehem Moravian College

Appellant

and

Dr Paul Thompson

First Respondent

And

The Teachers' Appeals Tribunal

Second Respondent

Between

The Teachers' Appeals Tribunal

Appellant

and

Dr Paul Thompson

First Respondent

And

The Board of Management of Bethlehem Moravian College

Second Respondent

Patrick Foster QC instructed by Henlin Gibson Henlin for the Board of Management of the Bethlehem Moravian College

Leroy Equiano instructed by the Kingston Legal Aid Clinic for Dr Paul Thompson

Harrington McDermott instructed by the Director of State Proceedings for the Teachers' Appeals Tribunal

JUDICIAL REVIEW - Principal - Whether the decision of the Committee tainted by bias - Order of Certiorari - Whether disciplinary proceedings unfair - Civil Procedure Rules 2002, Rule 56.15

Morrison JA (Dissenting)

Introduction

1 The Board of Management of Bethlehem Moravian College (“the board”) is vested with the responsibility of overseeing the operations of the Bethlehem Moravian College (“Bethlehem”). At all times material to these proceedings, the board was chaired by Mr Lowel Morgan, an attorney-at-law. I will refer to Mr Morgan as “the chairman”. Bethlehem, which is a public educational institution owned by the Moravian Church of Jamaica, is subject to the provisions of the Education Act (“the Act”) and the Education Regulations, 1980 (“the regulations”) (made pursuant to section 43 of the Act).

2 Up to the date of his dismissal by the board on 12 December 2008, the first respondent (“Dr Thompson”) was the principal of Bethlehem, having been appointed to that position in 2003. Dr Thompson's dismissal was the outcome of a hearing conducted by the Personnel Committee (“the committee”) of the board, between September and December 2008, into allegations proffered against him by the board.

3 Dr Thompson's subsequent appeal to the Teachers” Appeals Tribunal (“the tribunal”) was dismissed by it in a report given on 1 September 2009. Dr Thompson next challenged the tribunal's decision by way of proceedings for judicial review, in which it was contended, among other things, that the decision of the committee was tainted by bias and should therefore be set aside. In a judgment given on 25 May 2012, Daye J granted an order of certiorari quashing the decision of the board to terminate his appointment as principal of Bethlehem. The learned judge considered (at para. [63] of his judgment) that, on the basis of the material before him, ‘the fair-minded or informed observer having knowledge of the facts … would conclude that there was a real danger or possibility of bias in the minds of the members of the [committee] against [Dr Thompson]’. Further (at para. [64]), that ‘the disciplinary proceedings against [Dr Thompson] as a whole was [sic] not fair’.

4 These are therefore appeals by the board and the tribunal against Daye J's order. Both Phillips JA and Lawrence-Beswick JA (Ag) have concluded that Dr Thompson has made good his contention that there was a real possibility of bias in the committee and that Daye J was therefore correct in his overall conclusion that the disciplinary proceedings against him were unfair. However, during the course of the hearing of the appeals, pursuant to an order for fresh evidence granted by the court in response to an application by the board, it emerged that a permanent appointment to the position of principal of Bethlehem had been made, with the approval of the Jamaica Teaching Council, with effect from 1 January 2012, and that a vice principal had also been appointed, with effect from 2 February 2014. A subsequent application for leave to adduce fresh evidence made on behalf of Dr Thompson during the course of the hearing further elucidated the circumstances in which the appointment of the new principal had been made. I will in due course say something on the process by which the new principal came to be appointed (see paras [60]–[72] below).

5 Entirely on the basis of this evidence, my learned sisters have concluded that certiorari cannot lie in this matter. For the reasons given by Phillips JA (see paras [203]–[212] below), I agree with this conclusion. However, my sisters also take the view that, in the light of their conclusion that Daye J was correct in his finding that the disciplinary proceedings against Dr Thompson were tainted by bias and therefore unfair, it would be right to grant him a declaration to this effect, in lieu of certiorari. On this question of an alternate remedy, I again take no issue with the approach which has commended itself to my sisters (see the judgment of Phillips JA at paras [213]–[217] below), as it appears to me to be justified by the provisions of rule 56.15(3) of the Civil Procedure Rules, 2002 (“the CPR”) and rule 2.15 of the Court of Appeal Rules, 2002. However, I do find myself in the unhappy position of dissenting entirely from my sisters” conclusions on the substantive issues raised by these appeals. In my respectful view, Daye J plainly erred in granting certiorari in this matter and I would therefore allow these appeals and set aside his judgment. In a characteristically careful judgment, Phillips JA has fully considered all the facts and the submissions of counsel and I will therefore say no more about them than may be necessary to explain my own views.

The regulatory framework

6 It is first necessary to give some indication of the regulatory framework within which the board, the committee and the tribunal operate. The starting point is regulation 85, which deals with the establishment and composition of the committee:

‘85 — (1) The Board of Management of every public educational institution shall, for the purpose of facilitating inquiries into allegation of breaches of discipline by or against members of staff or students appoint a personnel committee to which the Board shall refer any such allegations, and such personnel committee shall consist of —

• (a) in the case of a government owned institution —

  • (i) the chairman of the Board;

  • (ii) one nominee of the Council;

  • (iii) subject to sub-paragraph (c), the representative on the Board of the category of accused personnel;

• (b) in the case of an institution owned by a denomination or Trust —

  • (i) the chairman of the Board;

  • (ii) one nominee of the denomination or Trust or the Board;

  • (iii) subject to sub-paragraph (c), the representative on the Board of the category of accused personnel;

• (c) where the accused personnel is the representative on the Board as described in sub-paragraphs (a) (iii) and (b) (iii), the category mentioned in those subparagraphs shall be entitled to nominate a representative for appointment to the committee.

(2) The quorum of the personnel committee shall be two, one of whom shall be the chairman or the vice chairman of the Board.

(3) Upon completion of its hearing into the alleged breach of discipline the committee shall submit a report to the Board for action.’

7 Regulation 55 lists the offences for which a teacher in a public educational institution may be disciplined:

• ‘(a) improper conduct while in school;

• (b) neglect of duty;

• (c) inefficiency;

• (d) irregular attendance;

• (e) persistent unpunctuality;

• (f) lack of discipline;

• (g) such other conduct as may amount to professional misconduct.’

8 Regulation 56 sets out the procedure to be followed by the board in response to a complaint as to the conduct of a teacher:

‘Where the Board of a public educational institution receives a complaint in writing that the conduct of a teacher employed by the Board is of such that disciplinary action ought to be taken against the teacher, it shall, as soon as possible, refer the matter to its personnel committee for consideration pursuant to regulation 85.’

9 Regulation 57(1) sets out the procedure to be followed by the committee once it has considered such a complaint. If it finds that the complaint is trivial and that a hearing is unnecessary, the committee must ‘report such finding to the Board forthwith’. On the other hand, if the committee finds that a hearing should be held, it must notify the complainant in writing of the date, time and place of the hearing and give not less than 14 days written notice to the person complained against of (i) the charge or charges in respect of which the hearing is proposed to be held; (ii) the date, time and place of the hearing; (iii) the penalties that may be imposed under the regulations if the charges are proven against such person; and (iv) the right of the person complained against and a friend or his attorney to appear and make representations to the committee at the hearing.

10 Regulation 57(5) provides that, not later than 14 days after the date of the enquiry, the committee shall report in writing to the board:

• ‘(a) that the allegations against the teacher have not been proved; or

• (b) that the charges against the teacher have been proved and may recommend —

  • (i) that he be admonished or censured; or

  • (ii) in the case of charges relating to a second or subsequent breach of discipline, that, subject to the approval of the Minister, a sum not exceeding fifty dollars be deducted from his salary; or

  • (iii) that he be demoted if he holds a post of special responsibility; or

  • (iv) that his appointment as a teacher with that public educational institution be terminated,

    and the Board shall act on the recommendation as received from the personnel committee, or as varied and agreed at the discretion of the Board.’

11 Regulation 57(6) provides that...