DR Sandra Williams-Phillips v University Hospital Board of Management

• Jurisdiction: Jamaica
• Judge: V. Harris, J
• Judgment Date: 09 February 2018
• Neutral Citation: [2018] JMSC Civ 15
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013HCV00103
• Date: 09 February 2018

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

COR: V. Harris, J

CLAIM NO. 2013HCV00103

CLAIM NO. 2013HCV02166

Between

Dr Sandra Williams-Phillips

Claimant

and

University Hospital Board of Management

Defendant

IN OPEN COURT

Dr. Sandra Williams-Phillips in person

Mr. Christopher Kelman and Ms. Stephanie Ewbank instructed by Myers, Fletcher & Gordon for the Defendant

Contract Law — Claim for arrears of salary based on term stated in employment contract — Whether term was a mistake — Whether the doctrine of unilateral mistake is applicable

Employment Law — Wrongful Dismissal — Whether Claimant is an Employee or Independent Contractor

Introduction/Background

1 In 2013 the claimant, Dr. Williams- Phillips, brought two claims against the defendant, the University Hospital Board of Management (‘UHBM’). The first claim was filed on the 9 ^th of January 2013 (claim number 2013HCV00103) in which Dr. Williams- Phillips was seeking to recover arrears of salary which she contends arose out of her employment with the UHBM.

2 The second claim was filed on the 9 ^th of April 2013 and was assigned claim number 2013HCV02166. This claim was for inter alia damages for wrongful dismissal and/or unfair/unjustifiable dismissal and a declaration that she be reinstated to her post as a sessional cardiologist.

3 A number of applications were made by both parties. On the 26 ^th of May 2014, my brother K. Anderson, J. made several orders after hearing the parties’ applications, one of which was the claimant's application to consolidate the claims. Having regard to the court's general powers of management specified at rule 26.1 (2) (b) and (h) of the Civil Procedure Rules (‘CPR’) which state:

26.1 (2) Except where these Rules provide otherwise, the court may -

(b) consolidate proceedings;

(h) try two or more claims on the same occasion;

K. Anderson, J. was of the view, “that what the claimant is really desirous of achieving, by means of her application, will be not so much, a consolidation of the claims, but rather, the equivalent of an order that the claims be tried together. These are two separate concepts, although utilized in this court, from time to time, as though they are one and the same.” 1

4 It was on this basis that the two claims were tried on the same occasion. For ease of reference I will refer to the first claim (claim number 2013HCV00103) as the ‘salary claim’ and the second claim (claim number 2013HCV02166) as the ‘wrongful dismissal claim’. With regards to the wrongful dismissal claim, it should be noted that my brother K. Anderson, J. concluded that this court has no jurisdiction to try the claim for damages for unfair and/or unjustifiable dismissal. 2

The Salary Claim

5 As previously noted, this claim was instituted on the 9 ^th of January 2013. In her claim form the claimant claimed, “ the sum of $9,090,410.34 as and for arrears of net salary for the period January 1, 2009 to April 20, 2012.” This amount was further particularised as follows:

	$
Amount Claimed	$ 9,090,410.34
Together with interest
Court Fees	2,000.00
Attorney's Fixed Costs on issue	8,000.00
Total amount claimed	$ 9,100,410.34

6 In addition to the sum of $9,090,410.34 claimed, the claimant by her amended claim form, filed on the 25 ^th of September 2015, is also claiming interest pursuant to the Law Reform ( Miscellaneous Provisions) Act and, “In addition to the above/ or in the alternative that an accounting be done in respect of all sums due to the Claimant regarding her employment with the Defendant to be done (including but not limited to salary, basic pay, emergency allowance, nine (9) months' notice pay pursuant to Witness Statements of Chartered Accountant of Louis Phillips, payment for emergency work, payments not made for sessions worked).”

7 In her further amended particulars of claim 3 the claimant averred that between the period January 1, 2009 to April 20, 2012 she was employed to the defendant as an Honorary Consultant Cardiologist and was required to work 32 sessions of four hours each per month, she was paid only 12 of those monthly sessions without being given basic pay or any special allowances for duties performed on an emergency basis. In support, the claimant exhibited a copy of her contract with the defendant, dated the 27 ^th of January 2011, which states as follows:

The Hospital Board of Management is pleased to offer you Appointment on a sessional basis as Consultant in the Department of Medicine on the Staff of the University Hospital of the West Indies for a period of one-year and subject to such orders and regulations as may be determined by the Board from time to time on the following terms and conditions:

• 1. DURATION: The appointment will be for the period January 1, 2011 to December 31, 2011 however, notwithstanding the stated period, the appointment may be terminable by one month's notice given in writing on either side. The appointment may be renewed for a further period of contractual service by mutual agreement.

• 2. SESSIONAL PAYMENT: You will be required to submit at the end of each month, through the head of Department, claims for Sessions performed to the Accounts Department. The rates per 4-hour sessions are as follows:

  Weekdays	Saturdays	Sundays & Pub. Holidays
  $11,699 per hour	$15,209 per hour	$15,794 per hour

8 The claimant contends that the last payment she received was in May 2012 for work performed in April 2012. Despite her repeated requests, the defendant has failed to pay her the arrears of salary and as a result she has suffered loss and damage.

9 Further, the claimant contends that males employed in a similar capacity were paid at a rate of $11,699.00 per hour, whereas she was paid at the rate of $11,699.00 per four hours, that is, $2,924.75 per hour. It was also averred in the said particulars of claim that this was a breach of section 3 of the Employment (Equal Pay for Men and Women) Act. In her further amended particulars of claim, reference was made specifically to the, “Claimant's male counterpart/colleague, Dr. William Foster, who was assigned the same/similar duties was paid for all sessions he worked on an hourly basis in addition to being given a basic salary and payment for work done on an emergency basis at a special rate.”

10 In her amended particulars of claim 4, the claimant stated that, “for the period beginning in 2011, the Claimant's contract legally and validly stated that the rate of payment was $11,699 per hour.”

The Defence to the Salary Claim

11 The defendant in its 2 ^nd further amended defence 5 denied much of the claimant's assertions, save for the facts that she was appointed as a sessional consultant in the Department of Medicine between the 1 ^st of September 2009 and the 20 ^th of April 2012 and that the last payment made to her was May 2012 for the month of April 2012. The defendant does not agree that the claimant was appointed as an unpaid honorary consultant for this period and maintains that she was always paid correctly.

12 The defendant stated that, “by a contract for services in writing dated April 15 2009 (“the first contract”) between January 1, 2009 and August 31, 2009 the Claimant's appointment was as an unpaid Honorary Consultant in the Department of Medicine. The Claimant's aforesaid appointment as a Sessional Consultant was by virtue of subsequent contracts for services in writing between the parties dated January 22, 2010 (“the second contract”) and January 27, 2011 (“the third contract”).”

13 In respect of the second and third contracts (that is, the 2010 and 2011 contracts) the defendant states that there was no term which provided for any additional payment and as such the claimant was not entitled to be paid basic pay, or any special allowance whatsoever. Further the defendant denied that there was any term in either the second or third contract which required that the claimant work 32 sessions (of four hours each) and that the claimant at no point (during the period September 1, 2009 to April 20, 2012) submitted claims for that number of sessions.

14 The defendant contends that the words “per hour” only appeared in the third contract and that they were added in error.

15 The defendant maintains that the claimant was duly paid the prescribed rates of $11,699.00 and subsequently $12,518.00. This rate according to the defendant is set by virtue of an agreement with the Ministries of Finance & Planning, Health and the Association of Government Medical Consultants. This agreement was dated the 2 ^nd of November 2006. Further, the defendant states that the terms of the said agreement stated that the contract period was the 1 ^st of April 2006 to the 31 ^st of March 2008 and that sessional consultants would be paid in accordance with the schedule. By letter, dated the 8 ^th of June 2008, from the Ministry of Finance and Planning approval was given to revise the salaries of Medical Officers Levels 4–8 in accordance with the schedules and the claimant was a Level 4 medical officer.

16 Alternatively, the defendant contends that the claimant is estopped from holding it to the rate mistakenly inserted in the third contract (namely the “per hour”) since the claimant acquiesced to the (weekday) rate of $11,699.00 per four hour session. This contention was further particularised as follows:

• i. The claimant ought to reasonably have been aware of the error in the third contract based on the terms of her second contract which set out the sessional payment rates per four hour session (as in paragraph [7] herein without the words “per hour”).

• ii. The claimant's acceptance of payment at the same rate in the second contract without enquiry throughout the third contract period amounted to acquiescence of those rates.

17 The defendant denies being in breach of section 3 of the Employment (Equal...