Karen Thames v National Irrigation Commission Ltd

• Jurisdiction: Jamaica
• Judge: CORAM: E. BROWN, J (Ag.)
• Judgment Date: 11 November 2011
• Judgment citation (vLex): [2011] 11 JJC 1103
• Court: Supreme Court (Jamaica)
• Date: 11 November 2011
• Docket Number: CLAIM NO. 2009HCV04341

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2009HCV04341

BETWEEN

KAREN THAMES

APPLICANT

AND

NATIONAL IRRIGATION COMMISSION LTD.

RESPONDENT

Mrs. Denise Senior-Smith instructed by Oswest Senior-Smith & Co. for Applicant.

Mr. Wentworth Charles and Mr. Floyd Green for Respondent.

JUDICIAL REVIEW – PRIVATE CORPORATION LICENSED TO CARRY OUT LEGISLATIVE FUNCTIONS – WHETHER CORPORATION SUBJECT TO JUDICIAL REVIEW – MASTER AND SERVANT – WHETHER CERTIORARI AVAILABLE – DISCIPLINARY PROCEDURES – WHETHER APPLICABLE IRRESPECTIVE OF EMPLOYMENT RELATIONSHIP

CORAM: E. BROWN, J (Ag.)

1 The applicant, Karen Thames, by amended Fixed Date Claim Form filed on the 25 ^th February, 2011, sought a number of reliefs. In particular, the applicant urged the court to make:

BACKGROUND

• (i) A declaration that the removal of the applicant from the post of Director of Corporate and Legal Services/Company Services (Actg.) is void.

• (ii) An order of certiorari to quash the decision of the respondent terminating the employment of the applicant with the respondent.

• (iii) An award of damages in a sum equivalent to what the applicant would have earned for the period from the date of her termination to March 2011. This sum should include all allowances that the applicant 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.

2 Miss Thames was first employed to the respondent in February of 1988 as a Personnel Assistant, under a contract terminable at the end of two years. Her employment continued until 1999. In 1999 she was promoted to Manager, Human Resources and Industrial Relations. In January, 2008 Miss Thames was appointed to act as Director of Corporate and Legal Services/Company Secretary. On the 1 ^st August, 2008, Miss Thames proceeded on vacation leave to resume on the 19 ^th instant.

3 Whilst on vacation leave, Miss Thames received a letter from Mr. Milton Henry, Acting Chief Executive Officer, on behalf of the Board of the respondent, dated 12 ^th August, 2008. In that missive the Board informed Miss Thames that contracts prepared by her were in breach of Government of Jamaica Guidelines. Mr. Henry advised that, ‘subsequent to the oral enquiry, the Board has established a Disciplinary Committee to carry out a full investigation and conduct the necessary hearings on the issue.’ To this end, Miss Thames was advised of her interdiction as of the 19 ^th August, 2008, with the concomitant one quarter reduction in salary. Additionally, she was requested to submit a written report to Mr. Henry by 22 ^nd August, 2008 at 4 p.m. Lastly, Miss Thames was advised, ‘you will be informed subsequently on the date for the disciplinary hearing.’

4 The requested report was duly submitted and its receipt acknowledged by Mr. Henry by letter dated 22 ^nd August, 2008. Mr. Henry ended his letter of acknowledgement in the following way, ‘please be advised that you will be hearing from us shortly.’ Miss Thames says she understood this to mean she would be later advised of the hearing date. Indeed, she did not expressly indicate in her report that she wanted a hearing because of the earlier promise of notification of the hearing date.

5 That notwithstanding, by letter dated 2 ^nd December, 2008, under the hand of the chairman of the respondent, Mr. Oliver Nembhard, Miss Thames was advised of her dismissal from the employment of the respondent, effective 5 ^th December, 2008. This letter made the claim that Miss Thames had been ‘cited under Clause 14 of the National Irrigation Commission Limited (NIC) Disciplinary Code for Unsatisfactory workmanship or work performance,’ by the Board's letter of 12 ^th August, 2008. The breaches were again recited and reference was made to section 7.2 of the NIC's Disciplinary Code.

6 The chairman's letter adverted to section 7.3 which speaks to the presumption of election for the charges to be dealt with on the basis of the written report in the absence of any election by the employee. The chairman pointed out that Miss Thames had not made any election when she submitted her written report. Consequently, the NIC proceeded with making a determination on the basis of her written report.

7 Miss Thames swore that under the respondent's Grievance and Disciplinary Code the punishment for unsatisfactory workmanship or work performance is a reprimand, for a first offence. She asserted in her affidavit that if she is found guilty of the offence, her termination would be in breach of the Code. Further, that the decision to remove her is not proportionate to the charge. However, Miss Thames contends that she committed no breach and that the decision to remove her was ‘arbitrary, oppressive, unlawful and unreasonable.’ Further, she was denied the opportunity to be heard.

8 Miss Thames received a compensation package of three months' salary upon her termination. She has been unable to obtain employment in either the public or private sector since then. The burden of mortgage, personal and educational loans is being borne with the aid of family and friends. This has resulted in a lowering of her standard of living and a deleterious effect upon her health.

9 Mr. Milton Henry responded to these allegations in an affidavit filed on the 7 ^th June, 2008. After reciting the averments of the applicant concerning his letter of the 12 ^th August, 2008, through to her notification of her termination, he made some pertinent asseverations. First, ‘that before the decision was taken to dismiss the applicant, the Commission gave full consideration to the Grievance Procedure and Disciplinary Code and also the principles of Natural Justice.’ Secondly, he was advised and verily believed that the action of the respondent ‘was not unlawful, unreasonable, arbitrary or oppressive and that the allegations made against the applicant were serious breaches of the Government's Rules and Guidelines.’ Thirdly, he was advised and verily believed that Miss Thames ‘was reprimanded for her frequent late attendance at work on the 7 ^th February, 1990. Lastly, he was advised and verily believed that the ‘Commission has not acted contrary to the principles of Natural Justice and that the applicant's application for Judicial Review is wholly misconceived and an abuse of the process of the Court.’

10 In relation to the nature of the entity, Mr. Henry deposed that the respondent is a body corporate established under the Companies Act as the National Irrigation Commission Limited. The Commission comprises fifteen persons, all appointed by the Minister of Agriculture. The appointments are made pursuant to ‘nominations submitted by the Customers of the Company, Ministry of Agriculture, Agro 21 Corporation Limited and the Underground Water Authority.’ These are collectively referred to as the Board of Directors.

11 Miss Thames rejoined in her affidavit of 19 ^th July, 2010, that the respondent was established or incorporated as the Authority under the Irrigation Act and declared to be a body corporate. The Government of Jamaica owns 99 of its 100 shares and the chairman the remainder. In spite of its status as a body corporate, the Authority operated subject to ‘the Minister's Orders, the Irrigation Act, policy and procedures from the Ministry of Agriculture.’ The Authority is mainly financed from the Consolidated Fund and is required to submit an annual budget to the Minister. The Minister appoints the chairman in his own discretion and the Board is appointed at the Minister's leisure. Further, Agro 21 Corporation Limited no longer exists.

12 Mr. Henry responded in an affidavit filed on the 7 ^th October, 2010. As far as he was aware, Agro 21 existed as a registered entity. Additionally, the NIC in 2001 was licensed to be the Irrigation Authority to carry out the functions of the Irrigation Act. On the question of the Chairman's involvement, Mr. Henry neither admitted nor denied this. However, he went on to assert that ‘the matter was deliberated at the level of the Board whereby the decision was taken to terminate the claimant's employment in accordance with her contract.’

Issues for Determination

13 The court is therefore called upon to decide, first, whether the NIC, a private corporation licensed to be the National Irrigation Authority, is a body that is subject to judicial review? And that is a question that must be answered by an examination of the source and nature of the power of the NIC. Secondly, if the NIC is found to be amenable to judicial review generally, is the decision which brought the parties to this court similarly susceptible? It has long been the law that the reviewability of a body does not make its every decision subject to review, simply by establishing that it's a body whose decisions come within the court's supervisory jurisdiction. Consequently, to decide if the impugned decision is reviewable, the court must define the nature of the relationship that existed between the parties. Lastly, if the application is refused, how should the court treat with the claim?

Is the NIC subject to Judicial Review ?

14 The first primary question is whether the NIC is a body whose decisions are amenable to judicial review? It has been said that ‘judicial review is the means by which the courts control administrative action by public bodies (including inferior courts and tribunals)’: Blackstone's Civil Practice 2010 . Consequently, this jurisdiction is of necessity supervisory and not appellate. Under rule 56.1 (2) of the Civil Procedure Rules 2002 , ‘Judicial Review’ includes the remedies (whether by way of writ or order) of - (a) certiorari, for quashing unlawful acts; (b) prohibition, for prohibiting unlawful acts; (c) mandamus, for requiring performance of a public duty, including a duty to make a decision or determination or to hear and determine any...