The Association of Government Medical Consultants v Southern Regional Health Authority
| Jurisdiction | Jamaica |
| Judge | Carr, J |
| Judgment Date | 29 September 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU2022CV00196 |
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[2023] JMSC Civ. 169
CLAIM NO. SU2022CV00196
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISON
Legitimate Expectation — Legitimate Expectation giving rise to a substantive right — What are the Claimants required to prove to establish a substantive Legitimate Expectation
Mr. Patrick Foster K.C. and Ms. Ayana Thomas instructed by Nunes, Scholefield DeLeon & Co. for the Claimant
Mr. Stuart Stimpson and Ms. Jevaughnia Clarke instructed by the Director of State Proceedings for the Defendants
The Claimant is an association and legal entity registered under the Trade Union Act. The association represents the interest of all Medical Consultants (Consultants) classified as HPC/ MO 4-8 employed to all governmental ministries and health agencies.
The Consultants are required to be on call twenty-four hours a day. For the last thirty years they have received an Emergency Duty/ On Call allowance (EDA) as compensation. This sum is paid regardless of the hours worked and is a significant portion of their take home salary. It is a flat or fixed sum which is subject to tax.
In a Heads of Agreement (HOA) which was concluded between the Government of Jamaica and the Consultants on November 6, 1997, it was agreed as follows:
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a. “Majority allowances to be incorporated into salary. The flat rate of the On-Call/ Emergency Duty Allowance is included in basic salary with effect from April 1, 1996.
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b. On Call/Emergency Duty Allowance – To be paid to all Medical Consultants. On Call/Emergency Duty Rates are as follows: Year I -$827,064 Year II - $926,316. To be incorporated into Basic Salary and made Pensionable.”
Up to the date of the filing of this claim the provisions of that agreement have not been met. The Consultants contend that the EDA forms part of their pensionable salary and, that they have a legitimate expectation that it will be incorporated into their basic salary and treated as pensionable. It is also their assertion that pursuant to an award from the Industrial Disputes Tribunal (IDT) made on July 22, 2016, the EDA forms a part of their salary. They filed a claim which they sought leave to amend at the hearing of the matter. Leave was granted and they now seek the following relief:
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1. A declaration that the emergency duty allowance paid to the Government Medical Consultants is a part of the salary/ remuneration for government Medical Consultants pursuant to IDT Award 37/2012 and is to be treated as part of their pensionable salary/ emoluments with effect from April 1, 1996.
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2. A declaration that the emergency duty/on call allowance paid to the Government Medical Consultants is to be used to compute gratuity payments for consultant doctors on fixed term contracts.
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3. Orders 1 and 2 are to be implemented by the Defendants on or before the 30 th of September 2023.
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4. Such further orders as this Honourable Court may deem just.
I have distilled the issues as follows:
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1. Did the Consultants have a legitimate expectation that the EDA would be incorporated into salary and made pensionable?
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2. Should the EDA be used to compute gratuity payments for Consultant Doctors on fixed term contracts?
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3. What is the effect of the IDT Award in determining the issue of legitimate expectation?
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4. Are the Defendants estopped from refusing to honour the promise made in the 1997 Heads of Agreement?
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5. If so, are the Defendants justified in departing from what was previously promised?
After the 1997 HOA in which it was agreed that the EDA would be incorporated into basic salary and made pensionable, the Government in 2012, took the decision to withdraw the payment of the EDA from Consultants who were on leave for more than 20 days. The matter was referred to the IDT and on July 22, 2016, an award was made concluding that the EDA formed part of the Consultant's remuneration and therefore, it was unfair and unreasonable to withdraw the payment while they were on leave. The Government thereafter continued the payment of the EDA without incorporating it into basic salary and making it pensionable as per the 1997 HOA.
The group continued negotiations over the years resulting in the signing of the 2000, 2016 and 2023 HOA. They contend that they have a legitimate expectation that the HOA implemented in 1997 would be fulfilled. They rely on the IDT award as well as the posture of the Government during the protracted negotiations to say that this expectation ought to be realized. It is further posited that in reliance on the promise as set out in the 1997 HOA they have been faced with undue hardship as the value of the EDA is more than a half of their salary. The failure to make it pensionable means that this portion of their salary is excluded upon retirement, and they are unable to make ends meet on the basic pension which they have received.
The Defendants submitted that since the HOA signed on November 6, 1997, there have been several rounds of negotiations with the Consultants where it was requested that the EDA be incorporated into pensionable salary, and they see these requests as an acknowledgment by them that it was never pensionable. The Defendants also submitted that the Government is under certain fiscal constraints and therefore cannot accede to their requests.
It was further submitted that the 1997 HOA did not state that the EDA would be incorporated into basic salary and made pensionable but instead stated that it would be included in basic salary from April 1, 1996. It is maintained that this action was taken with reference to the flat rate being rolled into the salary for Junior Doctors. It had the consequential effect on the salaries of the Consultants who had 75% of the midpoint of their respective salaries rolled into their salaries and such amount was used in the calculation of their pensions.
With regards to the award of the IDT it was submitted that the issue for determination there had nothing to do with the question of the computation of the salary as pensionable. The issue before the IDT was with respect to whether the medical consultants were entitled to the EDA when on leave. It is their submission that they have followed the award of the IDT to the letter.
It was further argued that the fact that the 1997 HOA terms were not met is an issue of contract. The Consultants having failed to address this issue in Court following the breach of the contractual terms, cannot now seek to rely on it. Following the 1997 HOA there has been no promise made on the part of the Government which would intimate that the intention was to make the EDA a part of basic salary or to make it pensionable. The claim they argue is without merit.
Before addressing the law of legitimate expectation, it is important to state that the Court's power to make declaratory orders is a discretionary one and can only be made on an application in circumstances where a party is the state, a court, a tribunal, or any other public body. In the Court of Appeal decision of Norman Washington Manley Bowen v. Shahine Robinson and Neville Williams 1 Morrison J.A. as he then was in referring to the text The Declaratory Judgment 2 highlighted the following passage:
“ A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs. It is to be contrasted with an executory, in other words, coercive, judgment which can be enforced by the courts. In the case of an executory judgment, the courts determine the respective rights of the parties and then order the defendant to act in a certain way, for example, by an order to pay damages or to refrain from interfering with the plaintiff's rights; if the order is
disregarded, it can be enforced by official action, usually by levying execution against the defendant's property or by imprisoning him for contempt of court. A declaratory judgment, on the other hand, pronounces upon a legal relationship but does not contain any order which can be enforced against the defendant. Thus, the court may, for example, declare that the plaintiff is the owner of certain property, that he is a British subject, that a contract to which he is a party has or has not been determined, or that a notice served upon him by a public body is invalid and of no effect. In other words, the declaration simply pronounces on what is the legal position.”
In summary a declaratory order is a statement of the legal position between the parties and a Court in exercising the power to make such an order must be mindful that it is not to be made in vain and is dependent on all the circumstances of the case.
The doctrine of legitimate expectation has developed over the years and has its origins in the concept of natural justice. It was the determination of the courts that non rights ought to be given protection in the same way as the rights which a citizen was entitled to. Before such non rights could be removed or taken away, a party should have the opportunity to be heard. Since then, the law has expanded and transcended the concept of the need for a fair hearing. It has now been established that a legitimate expectation can give rise to...
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