Hubert Smith v The Board of Management of The Queen'S School
| Jurisdiction | Jamaica |
| Judge | Morrison P |
| Judgment Date | 17 November 2016 |
| Neutral Citation | JM 2016 CA 99 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 26/2016 |
| Court | Court of Appeal (Jamaica) |
| Date | 17 November 2016 |
[2016] JMCA Civ 51
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison P
The Hon Mr Justice F Williams JA
The Hon Miss Justice P Williams JA
SUPREME COURT CIVIL APPEAL NO 26/2016
André A K Earle and Mrs Nickeisha Young-Shand instructed by Earle & Wilson for the appellant
Kevin Williams and Miss Shannon Mair instructed by Grant Stewart Phillips & Co for the respondent
Ms Vanessa Young and Ms Faith Hall instructed by the Director of State Proceedings watching proceedings on behalf of the Teachers' Appeals Tribunal
I have read in draft the judgment of my brother F Williams JA. I agree with his reasoning and conclusion and have nothing useful to add.
This appeal arises from the respondent's decision to dismiss the appellant from his employment as a senior teacher at the Queen's School (the school).
The process was begun with the receipt by Miss Jennifer Williams, the principal of the school, of an e-mail correspondence from the Caribbean Examinations Council. This correspondence contained allegations of the duplication of school-based assessments (SBAs) in the subject, Principles of Accounts, in respect of five students, four of whom were taught by the appellant. As a result, the students' examination results were cancelled. It led to an investigation by the vice-principal of the school and, eventually, to a letter from the principal to the chairman of the respondent dated 15 August 2012.
By way of letter dated 16 August 2012, the appellant was informed that the matter would be addressed by the personnel (disciplinary) committee of the respondent (the committee) on 30 August 2012.
On 30 August 2012, the committee met as scheduled and arrived at a decision to terminate the appellant. It communicated that decision to the respondent, which met on 7 September 2012 and, in keeping with the recommendation of the committee, took a decision to immediately terminate the appellant. The appellant, by way of letter dated 10 September 2012 from the respondent, was informed of his immediate termination.
On 5 October 2012, the appellant challenged the respondent's decision by lodging an appeal with the Teachers' Appeals Tribunal (the Tribunal). This appeal was heard by the Tribunal on 20 June 2013 and on 12 September 2013, the Tribunal allowed the appellant's appeal in full.
By way of a notice of application filed on 27 December 2013, the respondent sought to challenge the decision of the Tribunal allowing the appellant's appeal, by seeking leave to apply for judicial review. The application was heard by a judge on 6 October 2015 and on 4 December 2015, the learned judge granted the respondent leave to apply for judicial review and refused the appellant's application for permission to appeal.
The appellant then sought the said permission from the Court of Appeal by way of notice of application filed on 18 December 2015. The application was heard on 3 February 2016 and permission to appeal was granted by this court on 19 February 2016. In granting permission to appeal, this court (differently constituted) considered in the main the alleged breaches of the Education Regulations (the regulations). It found that the appellant had an arguable case with some prospect of success in relation to (i) regulation 85(1)(b), dealing with the composition of the committee; and (ii) regulations 88(9) and (12), in relation to the principal's participation in the termination process. The court granting leave, although finding that the appellant has arguable grounds with a real prospect of success in relation to these two grounds, nonetheless granted permission to appeal without restriction, leaving it to the appellant's legal advisors to advise him which grounds to pursue.
With the above guidance from the court granting leave, Mr Earle, on behalf of the appllent, sought to advance on the appellant's behalf only those two grounds (grounds 4 and 7) which were identified by the court as being arguable and having a real prospect of success.
These are the grounds:
“Ground (a): The Personnel Committee was improperly constituted contrary to Regulation 85 (1)(b) of the Education Regulations, 1980 as there were two unauthorized additions thereto contrary to the aforesaid Regulations.
Ground (b): The Principal being the complainant was present during the deliberations of the Personnel Committee on August 30, 2012 and was present and participated during the deliberations of the Board on September 7, 2012 contrary to Regulation 88(9) of the Education Regulations, 1980 and the rules of natural justice.”
We may now proceed to consider the individual grounds.
The resolution of ground (a) turns on an interpretation of regulation 85(1)(b) of the regulations. It reads as follows:
“(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. …
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;”
There is no dispute that the committee that considered the appellant's case, consisted of five members.
Against this background, Mr Earle, submitted that the fact that the committee was made up of five members, and not the required three, was a flagrant breach of the regulation. There were two unauthorized additions to the committee in the persons of Professor Geraldine Hodelin and Dr the Reverend Veront Satchell, he submitted.
Citing the case of Owen Vhandel v Board of Management of Guys Hill High School SCCA No 72/2000, judgment delivered 7 June 2001, Mr Earle further submitted that what he argued was the incorrect composition of the committee amounted to a fundamental procedural irregularity, which made any recommendation of the committee null and void, and had a similar effect on the decision of the respondent.
Mr Earle also cited the cases of Leary v National Union of Vehicle Builders [1969 L No 5156] [1971] Ch 34 and Lane v Norman (1891) 61 LJ Ch 149. In Lane v Norman, North J is reported to have opined as follows:
“But when persons who do not belong to the committee are summoned to attend the committee, to take part in the discussions which ensue, and to use their influence as to what the committee should do, and to vote upon the point, then in my opinion the body is not a committee duly appointed, but an committee with an unauthorized addition or additions made to it.”
Mr Earle further submitted that regulation 85(1)(b) must be considered along with two other regulations: namely, (i) regulation 70 and (ii) regulation 82(1).
This is the wording of regulation 70:
“70 (1) Every secondary public educational institution which is owned by a denomination and which is government-aided shall be administered by a Board of not more than nineteen members appointed by the Minister in the following manner —
(a) seven members including the chairman nominated by the denomination;
(b) the principal of the institution;
(c) one member nominated by the Council;
(d) four members elected in the following manner —
(i) one by the academic staff;
(ii) one by the administrative and clerical staff;
(iii) one by the ancillary staff; and
(iv) one by the student council;
(e) three members elected as follows—
(i) one by the Old Students' Association where such an association exists;
(ii) one by the Parent Teachers' Association where such an association exists; and
(iii) one by a recognized local community group;
(f) three members nominated by the Board for their particular expertise.”
Regulation 82(1) reads as follows:
“Where the chairman is absent or unable to attend a meeting of a Board the vice-chairman shall assume the duties of the chairman and where both the chairman and the vice-chairman are absent the members present and voting shall elect a chairman for that meeting.”
It was the submission of Mr Earle that, when regulations 85(1)(b) and 70 are read together, it becomes clear that the committee ought to have been composed only of (i) the chairman of the board; (ii) one nominee of the denomination or Trust or Board; and (iii) a representative of the category of the accused personnel. He further argued that the vice-chairman could not participate in his own right; but only in the absence of the chairman. However, even if the vice-chairman could participate in his own right, that would make the permissible membership of the committee, four; and so, by having a fifth member, the breach of the regulation would still be evident. He also pointed out that regulation 73, for example, stated a minimum number for the composition of a...
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