Lorna Elaine Jackson, Merle O'beron Palmer and Marva Elaine Phillips v The Chairman Board of Management - Haile Selassie Comprehensive High School, Belfield All Age School, Ministry of Education and Culture and Attorney General
| Jurisdiction | Jamaica |
| Judge | FORTE, P , PANTON, J.A. , SMITH, J.A. (Ag.) |
| Judgment Date | 20 December 2001 |
| Neutral Citation | JM 2001 CA 74 |
| Judgment citation (vLex) | [2001] 12 JJC 2010 |
| Date | 20 December 2001 |
| Court | Court of Appeal (Jamaica) |
EMPLOYMENT LAW - Teachers - Termination of employment - Application for judicial review - Whether Board had power to dismiss teachers for reasons given - Whether Board acted ultra vires
I agree with the reasoning and conclusion in the judgment of Smith, J.A. (Ag.) as well as the order proposed. I have nothing useful to add to his judgment which is thorough in its dealing with the important issues raised in these appeals.
Having read in draft the judgment of Smith, J.A. (Ag.) I agree that the appeals should be allowed. The dismissal of the appellants was not in keeping with the law of the land.
The appellants have appealed against the Orders made by Karl Harrison, J on April 6, 2001 whereby he refused their applications for judicial review.
Background
The appellants are registered teachers and were employed at the material time as teachers in public educational institutions. Mesdames Lorna Jackson and Marva Phillips had served as teachers at the Haile Selassie Comprehensive High School for 32 and 36 years respectively. Ms. Merle Palmer had served at the Belfield All Age School for 30 years. The appellants Martin, Brady, Williams, Rowe and Campbell served at the Edith Dalton James High School and had teaching experience of 6,12,15,21 and 4 years respectively. They are highly qualified and no complaint has been made in relation to their competence or conduct.
During the months of October and November 2000 the appellants received letters from the Chairmen of their respective School Boards informing them of the termination of their employment as of the end of the vacation leave to which they were eligible. They were also asked not to resume duties on the 1 st January 2001. The letters stated that the termination of their employment was as a result of the government commencing the implementation of a "restructuring policy to bring the staffing levels in line with the operating teacher pupil ratios and approved programme offerings".
In respect of appellants Jackson. Palmer and Phillips the letters stated that the period of 3 months commencing October 25, 2000 should be regarded as period of notice. The period December 1 to February 28, 2001 should be regarded as the period of notice for the others.
The letters were sent to each appellant without any prior opportunity being given to present their views on the matter.
The Letters
The letters to the teachers from the Board are vital to these proceedings. There are eight letters. They are in the following format:
"Dear...
The Government has commenced implementation of a restructuring policy to bring the staffing levels in line with the operating teacher pupil ratios and approved programme offerings. As a result of this exercise your employment as a teacher will cease at the end of the vacation leave to which you may be eligible.
The period December 1, 2000 to February 28, 2001 should be regarded as the period of notice.
In view of the above you will be granted earned vacation leave immediately following the period of notice at the end of which your employment will cease.
Notwithstanding the above you are kindly asked not to resume duties on January 1, 2001. Your salary will continue to be paid in the normal manner up to the expiration of the leave.
You are encouraged to explore and accept alternative employment in a school where a suitable vacancy may exist. A list of these schools is available at the Regional Office.
If a suitable placement has not been found at the end of the vacation leave you will be eligible for retirement in accordance with the Pensions (Teachers) Act. Your pension benefits will be determined as follows:
A gratuity if your service is a minimum of three (3) years but less than ten (10) years.
A pension if your service is ten (10) or more years
Should you choose to resign, you could give yourself the option to have previous teaching service linked to future service for pension purposes.
I look forward to hearing from you on your decision at the earliest possible date.
On behalf of the Board I wish to convey our appreciation for your years of service given to the field of education in Jamaica and wish for you success in your future endeavours.
Yours faithfully
Sgd.
Chairman.
The contents of the letters are basically the same, save that the letters to Marva Phillips and Lorna Jackson begin with the words "As requested by the Ministry of Education and Culture we wish to inform you that..." There are also variations between the letter to the appellant Jackson and those to the other appellants. The former contains the following paragraphs which are absent in the latter:
"(i) The records indicate that you have already attained the age of Fifty-five years and in accordance with the Pensions Act you may be retired on the ground of age; and
(ii) I look forward to hearing from you as early as possible in order to proceed with the processing of your pension benefits. "
In (ii) only the words underlined are peculiar to the letter addressed to the appellant Jackson.
By Notices of Motion the appellants sought orders of certiorari and declarations pursuant to section 564A of the Judicature (Civil Procedure Code) (Amendment) (Judicial Review) Rules, 1998. The following Order and Declarations were sought:
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(i) An Order of Certiorari quashing the letter from the Chairman of the Board of Management of each school to the respective appellants, purporting to terminate their services.
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(ii) A Declaration that neither the Board of Management nor the Ministry of Education had the power or jurisdiction to decide that the applicants should go on pre-retirement leave or should be compulsorily retired.
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(iii) A Declaration that the period during which each applicant has been prevented from carrying out his/her duties at the school by the action of the first and/or second respondent should not be deducted from, or count against her leave entitlement.
These applications were heard by K. Harrison, J who refused the reliefs and declarations sought and dismissed the Motions.
On appeal Dr. Barnett and Mr. Equiano for the appellants argued some ten (10) grounds.
Grounds of Appeal
"1. The learned judge erred in law (having regard to the applicable legislation and affidavit evidence) in holding that the relationship between the relevant Board of Management (the 2 nd Respondent) and teacher (the Appellant/Applicant) is one of employer/employee, and is strictly one of contract.
2. The learned judge erred in law in holding that there was a statutory basis for the actions of the 1 st and 2 nd Respondents.
3. The learned judge erred in law in holding that the 1 st and 2 nd Respondents were not acting ultra vires.
4. The learned judge erred in law in holding that the Appellant/Applicant's letter of termination was not issued pursuant to the Pensions (Teachers) Act, and that any reference in the said letter to the said Act was only by way of advice to her of her eligibility for retirement in the event that she was unable to be relocated. He further erred in law in failing to find that the 1 st and /or 2 nd Respondent in issuing the Appellant/Applicant's letter of termination were purporting compulsorily to retire her.
5. The learned judge erred in law in holding that, on a proper construction of the letter purporting to terminate the Appellant/Applicant's services, there is nothing in it to suggest that the Board of Management (the 2 nd Respondent) was acting pursuant to a directive by the Ministry (the 1 st Respondent) to terminate the Appellant/Applicant's services. This is in direct conflict with his finding that the 2 nd Respondent 'was required ... to carry out government's restructuring policy in order to bring staffing levels in line with established teacher/pupil ratios.'
6. The learned judge failed to have any or any sufficient regard to the affidavit evidence herein and to the letters dated December 7, 2000 and January 12, 2001 that were tendered into evidence by consent on behalf of the Appellant/Applicant, and further erred in law in holding that the Appellant/Applicant, by way of the 1 st Respondent's programme of review, was given an opportunity for a hearing.
7. The learned judge erred in law in holding: (a) that Regulations 56–59 of the Education Regulations, 1980 ought not to be strictly followed in any attempt by the 1 st and/or 2 nd Respondents to reduce the number of teachers (and in doing so to terminate the Appellant/Applicant's employment) pursuant to the implementation of a pupil/teacher ratio by the said Respondents: and/or in failing to hold that it was not followed in substance or at...
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