Chairman, Penwood High School Board of Management and Another v Loana Carty

• Jurisdiction: Jamaica
• Judge: Panton P,Brooks JA,Lawrence-Beswick JA (AG)
• Judgment Date: 25 July 2013
• Neutral Citation: [2013] JMCA Civ 30
• Docket Number: SUPREME COURT CIVIL APPEAL NO 18/2013
• Court: Court of Appeal (Jamaica)
• Date: 25 July 2013

[2013] JMCA Civ 30

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Brooks JA

The Hon Ms Justice Lawrence-Beswick JA (AG)

SUPREME COURT CIVIL APPEAL NO 18/2013

Between

The Chairman, Penwood High School's Board of Management

1st Appellant

and

The Attorney General of Jamaica

2nd Appellant

and

Loana Carty

Respondent

APPEAL - Procedural appeal - Respondent assaulted by principal at High School - Victimization - Dismissal - Damages for unfair dismissal - Education Regulations - Whether the Education Regulations fell under the auspices of public law - Whether to institute a claim in private law was an abuse of process - Whether the Supreme Court had jurisdiction to deal with a claim for unfair dismissal

PROCEDURAL APPEAL

Panton P

1 I have read, in draft, the judgment of Brooks JA. I agree fully with his reasoning and conclusion and have nothing to add.

Brooks JA

2 In or about October 2004, the respondent, Ms Loana Carty, a teacher at Penwood High School for over 28 years, was assaulted by the then principal of the school. The principal was convicted for the offence but, according to Ms Carty, subsequent to her having made the complaint, she was victimised in her employment. That victimisation, she asserts, led to her being relieved of her responsibilities as a senior teacher, and, eventually, to her being dismissed from the institution.

3 Ms Carty filed a claim in the Supreme Court, initially to have her status as a senior teacher restored, and subsequently to be re-instated in her job. Although the claim has been lingering in that court since 2005, it has yet to be tried. The school's Board of Management (the Board) and the Attorney General are the defendants to the claim and the appellants before us. They shall be referred to, hereafter, as the appellants.

4 The appellants applied twice in the court below to have Ms Carty's claim struck out in its entirety. In their third application, the appellants adjusted their approach somewhat. They sought to have struck from Ms Carty's claim, the portions whereby she seeks:

• a. a declaration that she was dismissed in breach of the Education Regulations 1980; and

• b. damages for unfair dismissal.

5 The appellants' applications were refused on each occasion. The last refusal was by Marsh J on 19 February 2013. In response to that refusal, they have filed this procedural appeal. In the appeal, they seek to have the order of the learned judge set aside, and to have the impugned portions of Ms Carty's claim, struck out.

6 The main issues raised by the appeal, are:

• a. firstly, whether the aspects concerning the Education Regulations properly fall under the auspices of public law and, therefore, to institute them in a private law claim is an abuse of the process of the court; and

• b. secondly, whether the claim for unfair dismissal is wholly misconceived as the Supreme Court has no jurisdiction in that matter, it being the exclusive province of the Industrial Disputes Tribunal.

The statement of case

7 In order to better appreciate the submissions made it would be helpful to set out the relevant portions of Ms Carty's further amended particulars of claim.

‘ PARTICULARS OF BREACH

• 19. The 3 ^rd Defendant [the principal] and agent of the 1 ^st and 2 ^nd Defendants [the Board and the Attorney General respectively] breached the Claimant's Contract of employment in that:

  • a) The implied term of the Claimant's Contract that she would be provided with a safe place of work was breached when;

    • I. The 3 ^rd Defendant set upon and physically abused the Claimant without lawful authority or excuse.

    • II. [The 3 ^rd Defendant locked] the Claimant out of the class room, forcing her to conduct classes in the open space thereby exposing the Claimant and those in charge to danger.

    • III. The 3 ^rd Defendant and other personnel consistently molested the Claimant.

• 20. The 3 ^rd Defendant breached the duty of mutual trust and confidence owed to the Claimant.

• 21. The 3 ^rd Defendant unilaterally removed the Claimant from her duties as head of the Mathematics and Science Departments without first consulting with her.

• 22. The 3 ^rd Defendant together with the 1 ^st Defendant terminated the Claimant's contract of Employment without any lawful justification and in breach of the procedures set out in Parts 56–59 of the Education Regulations 1980 .

• 23. The 3 ^rd Defendant and agent of the 1 ^st and 2 ^nd Defendants assumed the duties of the Head of Department without going through the proper procedures.

• 24. The 1 ^st Defendant failed to protect the Claimant from being assaulted and harassed by the 3 ^rd Defendant, their agent whether by himself or together with other personnel.

• 25. The 1 ^st and 3 ^rd Defendant deliberately caused pain and suffering and financial hardship to the Claimant by attempting to terminate her contract of Employment without due process.’ (Emphasis supplied)

The portion of the extract that has been emphasised will be relevant to the issue of whether Ms Carty's claim lies in public or private law or both.

8 At the end of the particulars of claim Ms Carty sought the following as relief:

‘THE CLAIMANT claims:

• 1. A Declaration that the Defendants have breached the Claimant's Contract of Employment and that the said breach be rectified.

• 2. Damages for unfair dismissal

• 3. Special Damages

• 4. Exemplary Damages

• 5. Aggravated Damages

• 6. Reinstatement or Re-employment of the Claimant

• 7. Damages for assault

• 8. Costs’ (Underlining as in original)

The submissions

9 In his submissions on behalf of the appellants Mr McDermott argued that Ms Carty, having based her initial claim on alleged breaches of the Education Regulations has placed herself squarely in the domain of public law litigation. Having done so, learned counsel argued, she is not permitted to bring her claim by way of an ordinary claim. She should have, he submitted, pursued relief by way of an application for judicial review. Mr McDermott submitted that, not having sought judicial review within the time stipulated by the Civil Procedure Rules 2002 (the CPR), Ms Carty's attempt tosecure relief by way of an ordinary claim form amounts to an abuse of the process of the court.

10 Mr McDermott accepted that an exception to that principle existed. The exception stipulated that where the relief sought involves a mixture of public and private law claims then an ordinary claim form may be utilised. He argued, however, that Ms Carty's situation does not fall within that exception.

11 Learned counsel relied on a number of decided cases in support of his submissions, includingO'Reilly v Mackman [1983] 2 AC 237 [1983] 2 AC 237 and Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 All ER 705 [1992] 1 All ER 705.

12 On the second main limb of his arguments Mr McDermott pointed out that Ms Carty had claimed relief on the basis that her dismissal was unfair. He quite properly pointed out that there is a distinct difference between a claim for unfair dismissal and one for wrongful dismissal. Learned counsel argued that whereas the courts had jurisdiction to hear claims and grant relief in respect of wrongful dismissal, which is a common law issue, a claim for unfair dismissal was restricted to the statutory jurisdiction...