McPherson (Alfred) v Minister of Land and Environment

• Jurisdiction: Jamaica
• Judge: SMITH, J.A. , HARRISON, J.A. , DUKHARAN, J.A.
• Judgment Date: 18 December 2009
• Neutral Citation: JM 2009 CA 120
• Judgment citation (vLex): [2009] 12 JJC 1805
• Court: Court of Appeal (Jamaica)
• Date: 18 December 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE SMITH, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE DUKHARAN, J.A

BETWEEN

ALFRED MCPHERSON

APPELLANT

AND

THE MINISTER OF LAND AND ENVIRONMENT

RESPONDENT

Miss Hilary Phillips, Q.C., Miss Teri-Ann Lawson and Miss Sherise Gayle instructed by Dunn-Cox for the appellant.

Curtis Cochrane and Miss Tasha Manley instructed by Director of State Proceedings for the respondent.

JUDICIAL REVIEW - Employment - Certiorari to quash decision to terminate claimant's employment - Damages

SMITH, J.A.

1 This is an appeal from the decision of the Full Court (Mrs. Marva McIntosh, Marsh and Mrs. Norma McIntosh JJ) delivered on July 11, 2007 whereby the Court refused the application of the appellant for judicial review of the decision of the respondent to recommend the revocation of the appellant's appointment as Registrar of Titles.

Background facts

2 By contract dated July 7, 2003, the appellant, an attorney-at-law, was appointed Director, Land Titles in the National Land Agency (NLA) for a period of three years with effect from July 21, 2003. The contract required the appellant "to observe and apply the standard of conduct of public officers as outlined in the Public Service Regulations, 1961 (the PSR) and Financial Regulations in so far as they are applicable and the Human Resource Manual of the Agency." The contract also required the appellant to sign a declaration under the Official Secrets Act and "to declare to the Public Service Commission (PSC) particulars of any investment or shareholdings in any company, occupation or undertaking in keeping with Staff Order 3.6."

3 The appellant was subsequently appointed Registrar of Titles by warrant of the Governor General pursuant to section 4 of the Registration of Titles Act (the RTA) with effect from July 21, 2003.

4 The Notice of his appointments which was published in the Jamaica Gazette of July 21, 2003 reads: "Mr. Alfred McPherson has been appointed to the post of Director, Land Titles/Registrar of Titles in the National Land Agency with effect from July 21, 2003."

5 At the time of the appellant's appointments, the Chief Executive Officer (CEO) of the NLA was Mrs. Elizabeth Stair. Shortly after his appointments, disagreements arose between the appellant and the CEO. According to the appellant these disagreements emanated largely from the CEO's attempts to control his statutory authority as Registrar of Titles in circumstances where neither the RTA nor the Executive Agencies Act (EAA) entitles the CEO to control and direct the functions of the Registrar. On the other hand, the CEO described the appellant's conduct as becoming "increasingly un-cooperative" and as having a "negative impact on our working relationship."

6 By letter dated January 25, 2006, the CEO of the NLA terminated the appellant's contract of employment with effect from January 26, 2006. Two cheques were attached to the letter. One was made out for $677,711.19 representing payment for three months salary in lieu of notice and payment for 16 days' vacation leave. The other was drawn for $1,093,905.93 and was in respect of net gratuity for the period July 21, 2003 to July 20, 2005. The CEO informed the appellant by the said letter that the Governor General had been requested to revoke his appointment as Registrar of Titles.

7 On the same date, January 25, 2006, the appellant's appointment as Registrar of Titles was revoked by the Governor General on the advice of the respondent.

8 The appellant sought and obtained leave for judicial review and by Fixed Date Claim Form dated June 19, 2006 sought the following orders:

• "(1) An Order of Certiorari to quash the decision of the Respondent to recommend that the Appellant's appointment as Registrar of Titles be revoked.

• (2) A declaration that procedures established by the Public Service Establishment Act and the rules of natural justice were not complied with by the Respondent in the decision making process with respect to the making of the said recommendation.

• (3) Damages

• (4) Costs."

9 The grounds on which the Orders were sought are:

• "(1) The Appellant was at all material times the holder of the post of Registrar of Titles, having been so appointed by the Governor General of Jamaica with effect from June 21, 2003, and as such is personally affected by and has sufficient interest in the subject matter of this application pursuant to Part 56 and 56.3 of the Civil Procedure Rules.

• (2) The Appellant's appointment as Registrar of Titles was evoked by the Governor General upon the recommendation of the Respondent, in breach of the rules of natural justice, the Public Service Regulations 1961 and the Civil Service Establishment Act."

Proceedings in the Review Court

10 Before the Full Court the appellant, as appellant, contended that the position of Registrar of Titles was at all material times an established post under the Civil Service Establishment Act (CSEA) and that the holder of such a post was entitled to all its privileges and protections afforded to officers in the public service. These entitlements, he argued, flowed from his status as a public officer and were not dependent on his contract of employment as a Director at NLA. Further, the appellant contended that the Instrument of Revocation was wrongly issued in that the recommendation of the termination of his appointment as Registrar was a matter for the PSC and not the respondent. The appellant argued that he held dual appointments � under contract as Director, Land Titles and by virtue of his appointment by the Governor General, as Registrar of Titles. He claimed that he had had a legitimate expectation that the procedure prescribed by the PSR would apply to him as Registrar. He was a public servant and as such he had a public law entitlement to due process.

11 The respondent contended that the appellant's contract of employment covered both his administrative post of Director, Land Titles in the NLA and his statutory technical duties of Registrar of Titles. The respondent pointed out that the appellant's contract of employment provided the method of termination. The appellant, it was submitted, had no right to be heard before termination since the parties agreed to termination by notice or pay in lieu of notice. Further, the respondent argued, the office of the Registrar of Titles was not a constitutional post and there were no statutory or constitutional restrictions on termination. The appellant's employment as Registrar, it was said, was governed by private contract and thus the public law concept of legitimate expectation would not apply.

12 The Full Court identified the issues as:

• (1) The scope of the appellant's contract of employment � whether it related not only to his position as Director, Land Titles but also to his position as Registrar of Titles.

• (2) The applicable procedure for termination of the appellant's position as Registrar.

• (3) Whether there was any basis for a legitimate expectation that the appellant would be entitled to the protection of the PSR particularly as it relates to termination of employment.

13 All three judges of the Full Court found that not only did the appellant's contract of employment relate to and cover both positions but also that the appellant was aware of that fact before he accepted the offer with ail its terms. In this regard, M. McIntosh J. said (at p. 15 of the judgment; page 454 of the record):

"The Appellant's employment as Director, Land Titles required that he carry out the functions of the Registrar of Titles. In effect, there was one contract for carrying out both duties. The termination of the Director, Land Titles position would result in the termination of the Registrar of Titles position. It would be inconvenient if not impossible for a different procedure to be required for the termination of each function nor would it be feasible for one to be terminated while the other continued."

14 Marsh J. had this to say (p. 22 of judgment, p. 467 of record):

"I accept and do hold that the holder of the post of Director, Land Titles, in the new National Land Agency, would also hold the post of Registrar of Titles, pursuant to the Executive Agency Act. It is patently clear to me, and, as it must have been, to the appellant that the contract made a single provision for salary."

15 N. McIntosh J. expressed herself in this way (p.41 of judgment, p. 480 of record):

"In my view there is ample evidence to support a finding that the contract related to both positions and it is therefore now necessary to consider whether, as a public servant termination of his appointment as Registrar was governed by his contract of employment or the provisions of the PSR and whether the latter provisions may be applicable to a person employed on a fixed term contract to an established civil service post."

16 As regards issue number two, the judges were also ad idem. The learned judges held that since the RTA is silent as to termination, the revocation of the appellant's appointment would have to be by the Governor General by virtue of section 35 of the Interpretation Act. The judges also held that pursuant to section 32 of the Constitution, the Governor General was obliged to act, as he did, on the recommendation or advice of the respondent as the relevant Minister in this case. It was the view of the learned judges, that since the appellant's appointment as Registrar was not on the advice or recommendation of the PSC, his contention that termination of such appointment was the business of the PSC in accordance with the PSR, had no merit. The judges also found that as a person on a fixed term contract of employment, the appellant was not entitled to invoke the provisions of the PSR, save for those terms and conditions of the regulations which specifically...