Karen Thames v National Irrigation Commission Ltd

• Jurisdiction: Jamaica
• Judge: Morrison JA,Dukharan JA,Phillips JA
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] JMCA Civ 43
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 153/2011
• Date: 31 July 2015

Between:

Karen Thames

Appellant

and

National Irrigation Commission Limited

Respondent

[2015] JMCA Civ 43

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 153/2011

JAMAICA

IN THE COURT OF APPEAL

Morrison JA

1 I have read in draft the judgment prepared by Phillips JA in this matter. I agree with it, and there is nothing that I can usefully add.

Dukharan JA

2 I have read in draft the judgment of my sister Phillips JA and agree with her reasoning and conclusion. I agree that the appeal should be allowed in part and that the whole application be dealt with as a claim.

Phillips JA

3 This is an appeal by Karen Thames (‘the appellant’) against the decision of the learned Evan Brown J (Ag) delivered on 11 November 2011, in a claim she filed seeking, inter alia , judicial review of the decision made by National Irrigation Commission Limited (‘the respondent’) to terminate her employment and an award of damages. Evan Brown J refused to grant the relief sought by the appellant and that refusal is the basis of this appeal.

4 During the course of litigation a number of documents were filed by both parties. I will list the ones that will be referred to in the course of this judgment since the facts set out below are distilled from affidavits filed by the respective parties. The appellant's affidavit in support of an application for leave to apply for judicial review dated 12 January 2010 has the following documents attached: (i) letter dated 12 August 2008 by Mr Milton Henry, chief executive officer (ag) of the respondent; (ii) the appellant's report dated 18 August 2008; (iii) letter dated 22 August 2008 by Mr Henry; (iv) letter dated 2 December 2008 by Mr Oliver Nembhard, chairman of the respondent's board; (v) letter dated 11 December 2008 by Mr Anthony Pearson, attorney-at-law for the appellant; (vi) letter dated 1 June 2009 by Donovan Stanberry, permanent secretary for the Ministry of Agriculture and Fisheries; and (vii) formal order dated 26 January 2010. In the appellant's second affidavit dated 19 July 2010 in response to Mr Henry's affidavit the documents attached included: (i) a memorandum of understanding for the public sector and (ii) memorandum dated 17 February 2004.

5 Mr Henry filed affidavits on the respondent's behalf. In his affidavit dated 7 June 2010 in response to application for judicial review the following are attached: (i) the appellant's contract for the post of personnel assistant with effective date 1 February 1988; (ii) job description and job specification for the post of director of corporate and legal services/ company secretary; (ii) letter dated 7 August 2008 by Mr Nembhard; (iii) the National Irrigation Commission Limited Grievance Procedure and Disciplinary Code (disciplinary code); (iv) letter dated 16 December 2008 by Mr Stanley Rampair (chief executive officer); and (v) letter dated 7 February 1990 by Mrs Arlene J Lawrence, personnel/industrial relations manager. Mr Henry also filed an affidavit in response to the appellant's second affidavit dated 7 October 2010.

Background

6 The appellant was employed to the respondent as a personnel assistant in or around February 1988. She was promoted to manager of human resources and industrial relations in or around January 1999 and in or around January 2008, she was appointed to act as director of corporate and legal services/company secretary.

7 As director of corporate and legal services/company secretary, the appellant's job description included the following list of responsibilities: (i) assisting in negotiating contracts/agreements on the respondent's behalf; (ii) preparing the contract/agreement documents and having them properly stamped, signed, sealed, witnessed etc; and (iii) ensuring that all members of staff in the division were informed of changes and development policies, plans and objectives which affect their work or welfare.

8 On 1 August 2008, the appellant went on vacation leave and was scheduled to resume duties on 19 August 2008. However, on 7 August 2008 Mr Nembhard provided written instructions to Mr Henry to notify the appellant of her interdiction and that she would be notified of a hearing date. Mr Henry by letter dated 12 August 2008, advised the appellant of possible disciplinary breaches on her part regarding the preparation of contracts for the National Irrigation Development Programme. The letter outlined four breaches of government guidelines as follows:

• (i) Contracts were not submitted to the Ministry of Agriculture or the Ministry of Finance as required for all contracts.

• (ii) The increase in compensation exceeded the government's approved guidelines of 15% and 7% for all new contracts.

• (iii) Contracts should not have been extended for a period of three years, but rather for a period not exceeding three months ending with a gratuity payment.

• (iv) Five days casual leave should have been given and not the 10 days casual leave that was granted.

9 The letter also advised the appellant that she was placed on interdiction as per the disciplinary code with effect from 19 August 2008. It went on to request a written report on the matter which was to be submitted by 22 August 2008 at 4:00pm and further stated that the appellant would be informed of the date for a disciplinary hearing.

10 The appellant responded to the correspondence by way of a report dated 18 August 2008 where she denied knowledge of any contractual breaches. The appellant said that having worked for the respondent for over 20 years, it had never been the respondent's practice to send contracts to the Ministry to be reviewed or approved. On the issue of leave entitlement, she stated that for the contract period April 2003 to March 2005, there was an agreement signed between the respondent and the University and Allied Workers Union, dated 14 February 2004, that granted persons employed to the respondent 10 working days casual leave per annum. The appellant asked for the interdiction to be reconsidered but did not expressly request a hearing in her report.

11 By letter dated 22 August 2008, Mr Henry acknowledged receipt of the appellant's report and advised her that a response would be communicated to her soon.

12 In a letter dated 2 December 2008, Mr Nembhard informed the appellant that she was dismissed effective 5 December 2008. The letter further stated that the appellant had been cited under clause 14 of the disciplinary code for unsatisfactory workmanship or work performance as a result of the breaches outlined in their earlier correspondence dated 12 August 2008. In that letter, Mr Nembhard noted that the respondent had opted to proceed with a decision on the basis of a written report instead of an oral enquiry, because the appellant in her written reply dated 18 August 2008, had not elected to have an oral enquiry into the matter pursuant to section 7.3 of the disciplinary code. He further stated that notwithstanding the appellant's response, it was inescapable that there had been a breach of government guidelines. Consequently,the appellant had been found to be neglectful of the duties for which she was engaged and her contract was therefore terminated in accordance with section 2(a) of the disciplinary procedures in the disciplinary code.

13 In a letter dated 16 December 2008, the respondent's chief executive officer listed the appellant's entitlement upon termination and urged the appellant to make arrangements to receive the same.

14 The appellant retained the services of an attorney-at-law who wrote to the respondent on 11 December 2008 requesting a disciplinary hearing. The appellant also sought the intervention of the Ministry of Agriculture and by letter dated 1 June 2009, the said Ministry promised to investigate the matter with the hope of an early resolution.

15 The appellant applied for an extension of time within which to apply for leave to apply for judicial review and for leave to apply for judicial review. The application was responded to by Mr Henry on the respondent's behalf. On 13 January 2010, Frank Williams J (Ag) granted the extension of time within which to apply for leave to apply for judicial review and leave to apply for judicial review.

Application for judicial review

16 By an order dated 17 February 2011, the appellant's amended fixed date claim form dated 25 February 2011, sought inter alia the following:

• (i) A declaration that the appellant's termination of employment and the removal of the appellant from the post of director of corporate and legal services/company secretary were void.

• (ii) An order of certiorari to quash the respondent's decision to terminate the appellant's employment.

• (iii) That damages be awarded in a sum equivalent to what the appellant would have earned for the period from the date of her termination to March 2011. This sum should include all allowances that the appellant was in receipt of and sums in lieu of all vacation leave for which she would have been entitled had she been at work during the said period.

17 Mr Henry deposed in his further affidavit that before the decision was taken to terminate the appellant, full consideration had been given to the disciplinary code and the principles of natural justice. He further stated that the allegations made against the appellant consisted of serious breaches of government rules and guidelines and additionally, on 7 February 1990, the appellant had been reprimanded for her frequent late attendance at work. In her second affidavit, the appellant stated that the four breaches advanced as the bases for her dismissal were without merit and that the respondent had breached the disciplinary code when it failed to hold a hearing. Mr. Henry, in response to the appellant's second affidavit, reiterated the respondent's view that the appellant had...