Catherine Allen v The Minister of Labour and Social Security
| Jurisdiction | Jamaica |
| Judge | Pettigrew Collins J |
| Judgment Date | 30 June 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU 2020 CV 00031 |
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[2022] JMSC Civ 98
CLAIM NO. SU 2020 CV 00031
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Constitutional Law — Whether claimant's rights under section 16(2) of the Charter of Fundamental Rights and Freedom breached — Whether a non — state entity bound by section 16(2) rights — Whether claimant had an alternative remedy.
Mrs. M Georgia Gibson Henlin, Miss Stephanie Williams and Miss Peta-Shea Dawkins for the claimant.
Ms Tamara Dickens instructed by the Director of State Proceedings for the first and second defendants.
Mr. Kevin Powell and Mr Mikhail Williams instructed by Hylton Powell for the third defendant.
The claimant filed a Fixed Date Claim Form on January 7, 2020. She sought several declarations as well as an injunction. At the commencement of the trial, Mrs Gibson Henlin intimated that she would not be pursuing the claim for the injunction. The declarations sought are that the defendants have breached the claimant's right to a fair hearing, that they have breached her right to a fair hearing within a reasonable time and her right to a fair hearing before an independent and impartial tribunal, which are rights enshrined in section 16(2) of the Charter of Fundamental Rights and Freedom.
The claimant also sought declarations to the effect that the first defendant's decision to adjourn the conciliation proceedings on the application of the employer and without hearing from the claimant, is a breach of her right to a fair hearing as well as a breach of the claimant's right to a fair hearing before an independent and impartial tribunal. The claimant further sought to have the court say that the decision of the first defendant to stay the conciliation proceedings was a breach of the claimant's right to a fair hearing as well as a breach of her right to a fair hearing before an independent and impartial tribunal.
A background to the claim will put the orders sought in some context. The claimant Mrs Catherine Allen was employed to the third defendant in the capacity of appointed actuary and vice president. There developed a disagreement between Mrs Allen and the third defendant (who will also be referred to as Guardian throughout this judgment) over its decision to release 1.25 billion dollars in reserve in 2018 without Mrs Allen's approval. Mrs Allen contends that her approval was required. Guardian insists that that was a decision that the Board could properly make without Mrs Allen's approval.
By way of a letter dated August 15, 2018, Guardian terminated Mrs Allen's employment. The basis of the termination as stated in the letter, was redundancy. Mrs. Allen was escorted to her office by two other vice presidents of Guardian and made to hand over her work computer. It is Guardian's account that the termination had nothing to do with the disagreement, but was a result of the decision of the Board of Directors of Guardian to outsource the functions of the appointed actuary.
As a result of her dismissal, Mrs. Allen filed Fixed Date Claim Form No. 2018 CD 00503 in the Supreme Court, seeking a number of reliefs. I have not been able to ascertain the original date of the filing of this claim but an Amended Fixed Date Claim Form was filed on the 7 th of September 2018. The orders sought in the amended claim are many and varied but it would be fair to say that the claim also challenged redundancy as being a proper basis for her termination.
On the 12 th of October 2018, Guardian filed a Claim Form (No. 2018 CD 00566) against Mrs. Allen, claiming an injunction and damages for breach of contract, breach of fiduciary duties and breach of confidence. The allegations against Mrs. Allen were that she had access to confidential information in her capacity as vice-president and actuary and that she had emailed confidential information to her personal laptop as well as to unauthorized persons.
On the 18 th of October 2018, Mrs Allen was advised by Guardian that investigations done on her laptop revealed that she had breached the confidentiality clause of her contract of employment and that they were considering dismissing her for cause. She did not respond to that letter and by letter dated November 1, 2018, Mrs Allen received another letter terminating her employment for cause. The effective date of her dismissal remained August 15, 2018 as was stated in the letter bearing even date.
On the 17 th of December 2018, Mrs. Allen's Attorneys-at-Law Henlin Gibson-Henlin wrote to the Minister of Labour and Social Security (abbreviated versions such as MLSS, the Minister or the Ministry will be used as is convenient) seeking his intervention in resolving the dispute. Between May 2019 and November 2020, the Ministry sought to have the parties engage in conciliation.
By way of letter dated October 28, 2019, Guardian's attorneys objected to Mrs. Allen's referral of the matter to the Minister. It would appear that the basis of that objection was the fact that there were already two claims before the Supreme Court relative to the dispute between Mrs Allen and Guardian; one brought by Mrs. Allen, and the other brought by Guardian Life.
Mrs. Allen took the view that the Minister was being dilatory in undertaking the conciliation process and on the 7 th of January 2020, she filed the present claim. By way of letters dated January 15, 2020 and January 24, 2020, Guardian's attorneys wrote to the Minister indicating that they were of the view that it would be prejudicial to continue with the conciliation meeting given the fact of the Court proceedings.
Set out below is a chronology of the events that briefly encapsulate the relevant activities over the period December 17, 2018 to January 7, 2020 when the claimant filed this claim and developments that have taken place since then. This chronology has been adopted from Mrs Gibson Henlin's chronology with few omissions which appear to be reflective of the claimant's view point. The events that I have itemized appear to accurately, neutrally and reasonably reflect events that transpired as may be garnered from the evidence.
This claim gives rise to the question of whether the rights conferred by section 16(2) of the Charter of Fundamental Rights and Freedoms were engaged in the circumstances of this case. Specifically regarding the third defendant, the question arises as to whether it is bound by those specific charter rights. The inevitable question of whether the claim is an abuse of process is also raised.
It is my considered view that there is no horizontal application of the rights conferred by section 16(2) and so the third defendant is not bound by them. It is also my conclusion that none of the claimant's rights conferred by section 16(2) of the Charter was breached by the first defendant in the circumstances of this case. In fact, the right to a fair hearing and the right to a hearing before an independent and impartial tribunal were not engaged. Although the right to a hearing within a reasonable time was engaged, the right was not breached by the first and second defendants. The delay of two years was such as would trigger a charter enquiry but there was no unreasonable delay that rose to the level of constitutional breach. The claimant had an alternative remedy. The bringing of this claim amounts to an abuse of process. The point whether the Attorney General was a necessary party in this case was not argued and I make no further reference to, or pronouncement on the matter.
December 17, 2018 Claimant referred dispute surrounding the termination of her employment to the Ministry of Labour and Social Security (MLSS)
December 18, 2018 Claimant's Attorneys-at-Law, Henlin Gibson Henlin (HGH), wrote the MLSS outlining the nature of the dispute and requesting urgent and immediate intervention to ensure an expedited resolution of the matter.
December 2018 – Several telephone calls to the MLSS to ascertain the status of the matter
March 2019 and urging them to advance same.
March 15, 2019 Henlin Gibson Henlin called the MLSS and was informed by its agent, Michael Kennedy, that the claimant's referral letter was sent off for legal opinion and that no follow-ups had been done since December 2018 to ascertain the status of the opinion.
April 2, 2019 Letter from HGH to the MLSS informing them that no steps have been taken to convene meetings and that an application will be made to the court for an order of mandamus.
May 6, 2019 Letter from HGH to the MLSS regarding the Minister's inactivity and continued lack of response (this letter enclosed a draft claim and affidavit).
May 13, 2019 Claimant commenced judicial review proceedings bearing Claim NO. SU2019CV02011 for an order of mandamus to compel the Minister to act.
May 14, 2019 Letter from the MLSS to HGH informing that the Ministry has taken steps to arrange a conciliation meeting.
May 20, 2019 Hylton Powell requested Claimant's letter to the MLSS dated December 18, 2018 and informed that their client's position will be outlined and sent in short order.
May 30, 2019 Minister advised Hylton Powell (Guardian's attorneys at law) that the requested letter is confidential and cannot be disclosed.
May 30, 2019 HGH requested update on the scheduling of conciliation from the MLSS.
June 4, 2019 Minister responded to HGH's letter dated May 30, 2019 with proposed dates;
June 4, 2019 Minister informed Hylton Powell of proposed dates and requested a response to its letter dated 24 th May 2019.
June 5, 2019 Hylton Powell informed Minister that Guardian Life is represented by Myers, Fletcher & Gordon (MFG) and they will respond to letter dated...
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