Derrick Wilson v Board of Management of Maldon High School and Another

• Jurisdiction: Jamaica
• Judge: Harris JA,Dukharan JA,Phillips JA
• Judgment Date: 03 June 2013
• Neutral Citation: JM 2013 CA 62
• Docket Number: SUPREME COURT CIVIL APPEAL NO 87/2007
• Court: Court of Appeal (Jamaica)
• Date: 03 June 2013

Between:

Derrick Wilson

Appellant

and

The Board of Management of Maldon High School

1st Respondent

The Ministry of Education

2nd Respondent

[2013] JMCA Civ 21

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 87/2007

JAMAICA

IN THE COURT OF APPEAL

JUDICIAL REVIEW - Principal - Order for mandamus to reinstate the applicant as principal of the Maldon High School - Order for certiorari to quash decision in letter to terminate the appellant

Hugh Wilson instructed by Wilson Franklyn Barnes for the appellant

Curtis Cochrane the Director of State Proceedings for the respondents

Harris JA

1 The appellant was the provisional principal of Maldon High School, he being appointed to that post for the academic year 1 September 2004 to 31 August 2005. On 18 May 2005, Mr Devon Ruddock, a Senior Education Officer, wrote to the Board, informing it of confirmation by the 2 ^nd respondent that the appellant's tenure as provisional principal be extended and that he be assessed for consideration as to permanent appointment. On 23 June 2005, the Board wrote to the appellant informing him that his provisional appointment would be extended for the academic year 2005 to 2006. Accordingly, his appointment in that capacity was renewed for the period June 2005 to September 2006.

2 On 8 February 2006, Miss Jennifer Francis, an education officer, assigned to the 2 ^nd respondent's regional four office, visited the school and discussed, with the appellant, a performance assessment done in respect of him for the period September 2004 to January 2005, a Performance Assessment Form for 2004 to 2005 having been prepared by her. Some of the ratings on the form did not meet the appellant's approval. On 1 May 2006, Mr Ruddock and Miss Francis met with the appellant at the regional office in Montego Bay and discussed his assessment. He again objected to several ratings on the Performance Assessment Form. Miss Francis, on 2 May 2006, revisited the school to inquire into the objections. Following this, a Performance Assessment Form for the period 2005 to 2006 was prepared by her.

3 In an affidavit filed by Miss Francis, she averred that on 2 June 2006, Mr Ruddock and her met with the appellant at the regional office in Montego Bay and the appellant was requested to sign the Performance Evaluation Form but he, having again raised objections to some of its contents, declined to do so.

4 On 2 June 2006, a meeting was held by the Board at which it was decided that the appellant would not be recommended for permanent appointment as a principal. A further meeting was convened by the Board on 31 July 2006, on which occasion it met to discuss a letter dated 26 July 2006, from the Teachers' Services Commission (the Commission). By letter dated 31 August 2006, the appellant was informed by the Board of its inability to recommend him for permanent appointment and that a decision had been taken to terminate his appointment as provisional principal. The letter reads:

‘August 31, 2006

Mr Derrick Wilson

C/O Maldon High School

Summerhilll

Point P.O.

St James

Re: Permanent Appointment — Maldon High School

Dear Mr Wilson

With reference to letter dated 26 July 2006 from the Teachers' Services Commission, It [sic] is with regret that I write to advise you that we are unable to recommend your appointment to the post of Principal — Maldon High School.

This decision was made after careful consideration and was largely based on the following reasons:

• 1) Failure to comply with Board instructions, (Acting contrary to decisions made by the Board)

• 2) A composite evaluation by personnels (sic) from the Ministry of Education, Youth and Culture Region 4

• 3) Failure to improve despite several counseling sessions.

Please note that your Provisional Appointment was extended for one year with the expectation that improvements would have been made. To date we have seen no significant improvement, and as such your services are terminated with effect August 31, 2006.

The following Remuneration Package will be made available as stipulated.

Gross payment One Hundred and Eighteen Thousand, Four Hundred and Ninety Dollars ($118,490) broken down as follows:-

The Board will be willing to meet with you in an exit interview and to provide guidance for future endeavours.

We wish you all the best in the future.

G Harris B.H. (M) J.P. Chairman’

Salary -	$103,490.00
Upkeep	$ 15,000.00
	$118,490.00

5 It has been observed, from the tenor of the Board's letter, that it made a recommendation that the appellant should not be appointed to the post as principal of Maldon High School but it also appears that it had made a decision to terminate his service. In the Board's letter, reference has been made to a letter of 26 July from the Commission to the Board. This is a letter from the Commission to the Chairman of the Board informing him of the Commission's decision to advise the Minster that the appellant should not be confirmed in the post of principal. An affidavit of Ms Adrienne Hawthorne, a director of the School's Personnel and Administration Services of the Ministry of Education, shows that a decision was taken by the Minister not to appoint the appellant principal and this had been communicated to the Commission. By letter of 26 July 2006, the Commission transmitted information to the Board regarding its support of the Board's recommendation and of the Minister of Education and Youth's decision not to appoint the appellant the principal of the school.

6 A letter of 8 August 2006, from the Jamaica Teachers' Association, under the hand of its Senior Secretary of its Members Services Unit, was sent to the Board informing it of a request by the appellant for the association's intervention in the matter. Paragraph three of the letter states:

‘…

Kindly observe the following:

• i) Your notice is in contravention of Regulation 54 (2);

• ii) Your Board must provide documentary evidence of the Principal's failure to comply with directives from the Board (eg Board Minutes, memoranda or letters to Principal from the Board.

• iii) in order to determine that there was no improvement at least two (2) sets of evaluations must have been done and to which Mr Wilson would have had sign off on;

• iv) Your letter extending his probationary period must indicate:-

  the areas of perceived weakness, and expected improvements

It would be on these specifics that his performance would have to be judged.

…’

7 On 16 August 2006, the appellant's attorneys-at-law wrote to the Board informing it, among other things, that the procedure adopted by it in the matter concerning the appellant is invalid. No response having been received from the Board, the appellant, by way of judicial review, sought relief under a fixed date claim form for the following:

• ‘1 An order of Mandamus directing the 1 ^st and 2 ^nd defendants to reinstate the Applicant as principal of Maldon High School and to confirm him in his post as principal.

• 2. An Order of Certiorari to remove into this Honourable Court and to quash the decision contained in letter dated August 31, 2006 to terminate the Applicant's appointment as provisional principal of Maldon High School aforesaid and or the decision of the 2 ^nd defendant not to confirm the Applicant's in his post as principal.

• 3. Such further or other relief as may be just.

• 4. Cost.’

8 The claim was subsequently heard by Marva McIntosh J, who on 31 July 2007 made the following order:

‘The claimant's application for Order of Mandamus and Order of Certiorari is refused. Costs to the Defendants to be agreed or taxed.’

9 The appellant, being dissatisfied with the outcome of his claim, has now appealed. His grounds of appeal are couched in the following terms:

• ‘(a) The learned trial judge erred in law and in fact by refusing and or neglecting and or failing to determine whether or not the Board of Management of Maldon High School (the Board) was under a duty to act fairly in relation to the Appellant/Claimant in that he should have been given the opportunity to make representations to the Board, either in writing or orally, at its June 2, 2007 and or July 31, 2007 meetings so as to refute or contradict allegations levelled against him by the Board before the Board advised the Teachers Service Commission (the Commission) that it would not recommend him for the permanent post of principal.

• (b) The learned trial judgment [sic] erred in law and in fact by refusing and or neglecting and or failing to determine whether or not the Appellant/Claimant was regularly assessed within the provisions of Schedule A 2 (f) of the Education Regulation, 1980.

• (c) The learned trial judge erred in law and in fact by refusing, and or neglecting and or failing to determine whether or not the Commission was under a duty to act fairly in relation to the Appellant/Claimant in that he should have been given an opportunity to make representations, either orally or in writing, before [sic] the Commission at its July 7, 2007 meeting so as to challenge allegations made against him by the Board before [the] Commission advised the 2 ^nd defendant not to confirm him in the post of principal.

• (d) The learned trial judge erred in law and in fact by refusing and or neglecting and or failing to determine whether or not the Appellant/Claimant should have been given reasonable notice before his employment as provisional principal came to an end or whether or not s 54 (i) of the Education Regulations, 1980 applied to him.

• (e) The learned trial judge erred in law and in fact by refusing and or neglecting and or failing to determine whether or not the Board was properly constituted when the decision was made by it at a June 2, 2007 and or...