National Water Commission v Duffus (Balteano)

• Jurisdiction: Jamaica
• Judge: Campbell J.
• Judgment Date: 01 July 2002
• Judgment citation (vLex): [2002] 7 JJC 0101
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C.L. 1992/D-025
• Date: 01 July 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 1992/D-025

BETWEEN

BALTEANO DUFFUS

PLAINTIFF

AND

NATIONAL WATER COMMISSION

1 ^ST DEFENDANT

AND

WAYNE REID

2 ^ND DEFENDANT

EMPLOYMENT LAW - Contract of employment - Breach - Wrongful dismissal - Award of damages

Campbell J

1 On the 9 ^th March 1992, the Plaintiff filed a Writ against the Defendants for breach of contract of employment in that the Second Defendant, acting as servant and agent of the First Defendant, wrongfully terminated the Plaintiff's employment as Director of Commercial Operations by letter dated the 28 ^th April 1990. The Amended Statement of Claim alleged inter alia;

• 1) The 1 ^st Defendant was at all material times the employer of the Plaintiff and a statutory body set up under the Water Commission Law.

• 2) The 2 ^nd named Defendant was at all material times the Chairman of the Board of Directors of the 1 ^st named Defendant and the servant and or agent of the said 1 ^st named Defendant.

• 3) The Plaintiff was, by letter dated the 7 ^th of September 1989, appointed to the post of Director, Commercial Operations with effect from 1 ^st January 1987. By letter dated the 28 ^th of April 1990 the Defendants wrongfully and in breach of the said Agreement terminated the said employment.

2 On the 11 ^th October 2000, the Defendants filed a further Amended Defence and counterclaim, which alleged inter alia;

• 2. Save that the 1 ^st Defendant was established pursuant to the National Water Commission Act (and not the Water Commission Law) the Defendants admit paragraph 2 and 3 of the Amended Statement of Claim. At all material times, the 2 ^nd Defendant acted in pursuance, or execution, or intended execution of his duties in the capacity of Chairman of the 1 ^st Defendant, and the Defendants rely, inter alia, on Section 13 of the First Schedule of the National Water Commission Act.

• 3. The Defendants admit Paragraph 4 of the Amended Statement of Claim and state that the Plaintiffs appointment to the said post was retroactive to the period commencing 1 ^st January, 1987 and ending 4 ^th September, 1989. The said letter (hereafter referred to as "the 1 ^st letter") was written as a matter of record to confirm that the Plaintiff had held the substantive position of Director, Commercial Operations (Grade 14) for that period.

• 4. The Defendants also state that by a separate letter also dated 7 ^th September, 1989 (hereinafter referred to as "the 2 ^nd letter"), the Plaintiff was re-assigned to the post Director, Corporate Planning -Finance (Grade 14) with effect from 4th September, 1989.

• 5. The Defendants further state that by letter dated 28 ^th May, 1990, the Plaintiff was advised that the said post of Director, Corporate

3 Planning — Finance (Grade 14) was abolished by the 1 ^st Defendant.

4 The Plaintiff's Case

5 Mr. Balteano Duffus was, in May 1990, a public servant for twenty-three years. He had been employed at NWC since September 1980, having transferred from the Ministry of Agriculture. In 1982, NWC had facilitated his participation in post-graduate studies at University of Western Ontario.

6 He returned in 1985 from Canada and in 1986 was appointed to act in the post of Director of Commercial Operations. He remained in that post up to 1987 when he was summoned by the Managing Director, Mr. Bennett. The Plaintiff's unchallenged testimony was that he was asked by Bennett to take a special post to assist in taking NWC to "a more business-like level" and that Bennett needed someone to carry-out a special assignment in corporate and business planning. In order to accomplish this task, Duffus was to take the post of Director of Corporate Planning. Some two weeks after that conversation he received two letters, both of which were dated 7 ^th September 1989. One appointing him to the post of Director of Commercial Operations, with effect from the 1 ^st January 1987. The other reassigned him to the post of Director of Corporate Planning, with effect from the 4 ^th September 1989. Eight months after his re-assignment he received a letter, (Exhibit 4), retiring him from his newly assigned post. This letter contained a cheque and advised him that the post of Director of Corporate Planning was being abolished, and that he was being retired.

7 The Plaintiff testified that he had entertained aspirations of becoming President of NWC. He claimed the Post of Director Corporate Planning was not a pensionable post, not having been gazetted. He said that he agreed with Dr. Reid's letter dated 16 ^th October, 1990 that the position of Director, Corporate Planning was an interim organisational structure, was not an approved budgetary position as it was not gazetted and therefore not considered a part of the establishment (ex 15).

8 Cross-examined by the Defendant's Counsel, it was suggested to Mr. Duffus that there was nothing in the letter of re-assignment stating it was temporary. Mr. Andre Earle, on behalf of the Defendants, asked the Plaintiff if he knew that NWC may appoint anyone on its own terms as it thinks fit. The Plaintiff said he was not so aware.

9 The Plaintiff testified that on the 17 ^th December 1990, the Plaintiff's Attorneys-at-Law wrote the 1 ^st Defendant, for the attention of the 2 ^nd Defendant, demanding his re-instatement to the post of Director, Commercial Operations.

10 The Defendant's Case

11 Dr. Wayne Reid testified that he was Chairman of NWC from April 1989 to March 1995. He further testified that the Plaintiff's appointment to the post of Director of Corporate Planning was a permanent one. He said the same day the Plaintiff left the post of Director of Commercial Operations was the same day he was appointed to the Post of Director of Corporate Planning.

12 Dr. Reid said, "shortly after the Plaintiff's assumption of the new post, the Board based on policy guidelines from the Minister and Cabinet, and in order to effect an improvement in efficiencies in the organization, instituted certain changes. The board had found, after a number of analysis, some by internal staff, others by external management consultant (Price Waterhouse), that there was a significant number of areas, e.g., internal organisation of the NWC, the management of the various disciplines, and condition of plant that needed improvement. Dr. Reid testified that "the benchmark that hit us hardest was the way our human resources was deployed. We were spending 35 – 40% of income of NWC in wages, salary and the packages that went with them." In continuing to outline the conditions that existed at NWC, Dr. Reid testified that, "In addition to that problem, there were areas where although a superfluity of staff, there were gaps in the delivery of the products." He gave illustrations of such gaps occurring between the Commercial Operations Division and other divisions.

13 The Board addressed these problems by correcting the billing systems — in relation to staffing, an entire division was eliminated; some divisions were merged, new ones were created in an attempt to streamline the operations.

14 Dr. Reid said that the Plaintiff was not the only person that was "reengineered". In 1990 the number of persons who lost jobs as a result of "reengineering" was 800. Subsequent to 1990, about 1700 persons lost their jobs, bringing the total to 2,500. The financial efficiencies achieved brought about significant improvement. He testified that the post of Director of Commercial Operations survived the first phase of reengineering. It was eventually abolished in 1993, the year the incumbent Violet Reynolds retired.

15 Cross-examined, Dr. Reid said that there was a time lapse between the creation and the gazetting of a post. He was not aware that when Reynolds was appointed she was one month away from retirement, and she was succeeded by a Ms. Florence Logan. He said at the date of the abolition of the post, it had not been gazetted, and the proper and legal procedure was for gazetting of the post, and admitted candidly that "NWC did not have a very tidy Personnel Section." He said that in 1990 when massive computersation was being carried out, he was not aware that Mr. Duffus had a specialised knowledge in that area. He said that the Plaintiff was not an asset to the organisation and that if a post was abolished, it was not necessary for the incumbent to go, as he could be redeployed if he could assist the organisation. He does not recall if he considered the redeployment of Mr. Duffus.

16 Mr. Gawain Forbes, General Manager for Legal Affairs, testified that the NWC operations are governed by the NWC Act primarily.

17 He said he advised that a counterclaim be filed in respect of the action brought by the Plaintiff for the pension benefits the Plaintiff received. Cross-examined by Mr. Samuels he says that he is unaware that regulations have been made pursuant to section 12, dealing with appointment of officers. He was also unaware of regulations being made in respect of dismissals. He says there are regulations in place in respect of pensions and gratuities. He testified that the Board has passed a set of rules that are found in the Commission's Manual that deals with dismissal and employees grievances. These "set of rules" were not in evidence. Neither was the Court told by what procedure they came to be adapted.

18 Ms. Sharon Fender, with experience in Pensions and Salaries, testified that a commuted allowance is only paid on retirement. She gave the formula for the computation of the various pension entitlements. Looking at exhibit 12 she said that the Plaintiff received a lump sum and a reduced pension - a total of $208,650. In addition, he has received from October 1990 to June 1993, monthly payments of $2,2,500 per month, amounting to $80,000. Thereafter from 15 ^th July 1993 to August 1999, he was paid $650 per month, that is a...