The Minister of Finance and Planning & Public Service et Al v Bailey-Latibeaudiere

• Jurisdiction: Jamaica
• Judge: Morrison, J.A.,McIntosh, J.A.,Lawrence-Beswick, J.A.
• Judgment Date: 09 June 2014
• Neutral Citation: JM 2014 CA 56
• Docket Number: Civil Appeal No. 76 of 2013; Civil Appeal No. 87 of 2013
• Court: Court of Appeal (Jamaica)
• Date: 09 June 2014

Court of Appeal

Morrison, J.A.; McIntosh, J.A.; Lawrence-Beswick, J.A. (Ag.)

Civil Appeal No. 76 of 2013; Civil Appeal No. 87 of 2013

The Minister of Finance and Planning & Public Service et al

and

Bailey-Latibeaudiere

Appearances:

Mrs Nicole Foster-Pusey QC, Miss Carlene Larmond and Basil Williams instructed by the Director of State Proceedings for the appellants.

Hugh Wildman and Miss Barbara Hinds instructed by Hugh Wildman & Co for the respondent.

Civil Practice and Procedure - Appeal against orders granting leave and dismissing the preliminary objection — Whether it was open to the 1st Applicant to terminate the respondent's employment contract — Finding the judge's decision to grant leave to the respondent to apply for judicial review was one properly open to him — Appeal against grant of leave dismissed — Injunction continued until specified date — Written submissions ordered.

Morrison, J.A.

INTRODUCTION

1 The 1st appellant (‘the MOF’) is the minister of government with responsibility for the portfolio of finance and planning, while the 2nd appellant (‘the FS’) is the civil service head of the ministry. The 3rd appellant (‘the PSC’) is the commission appointed under section 124 of the Constitution of Jamaica (‘the Constitution’).

2 Under section 125(1) of the Constitution, the power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices is vested in the Governor-General acting on the advice of the PSC. Section 125(3) of the Constitution lays down the procedure to be followed before the Governor-General can act in accordance with the advice of the PSC that any public officer should be removed from office.

3 The respondent was at all material times a contract employee of the Government of Jamaica (‘GOY). She was assigned to the Ministry of Finance & Planning (‘the MFP’).

4 By letter dated 10 July 2013, the MFP purported to terminate the respondent's employment with effect from 31 July 2013. On 23 August 2013, Sykes, J. granted leave to the respondent to apply for judicial review of the decision to terminate her employment and, on 19 September 2013, he dismissed a preliminary objection by MFP to the continuation of the judicial review proceedings.

5 The MFP appealed from the orders of the judge granting leave (SCCA No. 87/2013) and dismissing the preliminary objection (SCCA No. 76/2013). On 30 April 2014, both appeals having been heard together by the consent of the parties, SCCA No. 87/2013 was dismissed, while SCCA No. 76/2013 was allowed. These are my reasons for concurring in these decisions.

BACKGROUND

6 By an agreement (‘the contract’) dated 7 July 2011, made between the respondent and the MFP, the respondent was appointed to the position of Commissioner General of Tax Administration Jamaica (‘CGTA’). The appointment was for a period of three years, beginning on 1 May 2011 and ending on 30 April 2014, “or such lesser period as shall be agreed between the parties”.

7 Among other things, the contract provided that -

• (i) it was subject to renewal by the agreement of both parties for a further period of up to three years (clause 2);

• (ii) the respondent would be required to observe and comply with various regulations governing the public service of Jamaica, including the Public Service Regulations 1961 (‘the PSR’), the Official Secrets Act and the Staff Orders for the Public Service as well as departmental instructions in force from time to time;

• (iii) it was terminable by either party, without cause, giving not less than 30 days' written notice to the other (clause 39).

8 In due course, acting on the recommendation of the PSC, the Governor-General approved the appointment of the respondent “on contract/gratuity terms” for the period mentioned in the contract. Notice of the appointment was published in the Jamaica Gazette for 5 April 2012.

9 For reasons which are neither particularised nor fully explained in the documentation included in the record of appeal, the MFP became dissatisfied with the respondent's performance as CGTA. By letter dated 27 February 2012, the FS notified the respondent of her transfer to the position of Commissioner General, Ministry of Finance & Planning (‘CGMFP’), with effect from 28 February 2012.

10 By letter dated 28 February 2012, the respondent advised the FS that, in accordance with his instructions, she had assumed duties in the new position as of that date. Up to the date of commencement of these proceedings (26 July 2013), she continued to function in that capacity.

11 Between September 2012 and July 2013, discussions took place between the Solicitor General (‘the SG’), representing the MFP, and attorneys-at-law representing the respondent. These discussions were with a view to arriving at a mutually agreeable position as regards the termination of the contract.

12 No agreement was reached as a result of these discussions and, by letter dated 10 July 2013, the SG notified the respondent's attorneys-at-law that the MFP would be terminating her contract with effect from 31 July 2013. The SG's letter also advised that the respondent would “be compensated for the entire duration of the contract, that is for the remaining period of August 1, 2013 to April 30, 2014”. Further to this letter, the respondent's bank account was on 29 July 2013 credited with the sum of $12,425,789.18, representing the net amount of the sums due to her for the remaining life of the contract.

13 By letter dated 17 July 2013 (captioned “Re: Viralee Latibeaudiere - Termination of Employment Contract”), the respondent wrote to the Governor-General seeking “your intervention in the captioned matter”. The letter complained of breaches of the PSR and the rules of natural justice. However, as at the date of commencement of the hearing of the application for leave, there was no response to this letter.

THE COURSE OF THE PROCEEDINGS

14 By notice of application for court orders filed on 26 July 2013, the respondent sought leave to apply for judicial review of the decision to terminate her contract. She indicated her intention to ask for the following orders:

• “(i) A declaration that the 1st respondent is not empowered by law to terminate the contract of the applicant as Commissioner General of Tax Administration or otherwise interfere with the discharge of her statutory obligations under the said contract and the Revenue Administration (Amendment) Act;

• (ii) A declaration that the 2nd respondent is not empowered by law or otherwise to terminate the contract of [the] applicant as Commissioner General Tax Administration Jamaica either on his own volition or pursuant to the dictates of the 1st respondent.

• (iii) A declaration that the 2nd respondent cannot transfer the claimant to any other position in the Ministry of Finance and Planning and the Public Service unless the position is an equivalent one and for good and sufficient reason.

• (iv) A declaration that the applicant is the only person lawfully entitled to exercise the powers of Commissioner General Tax Administration Jamaica under the Revenue Administration (Amendment) Act 2011 and any other statute recognizing her authority and all actions taken without the lawful consent and approval of the applicant is [sic] null and void.

• (v) An Order of Certiorari quashing the decision of the first respondent to terminate the contract of the applicant;

• (vi) An Order of Certiorari quashing the decision of the 2nd respondent to terminate the contract of the applicant and the decision of the 2nd respondent to transfer and/or reassign the applicant from her post as Commissioner General Tax Administration Jamaica.

• (vii) An Order of Prohibition prohibiting the respondents either by themselves and/or their servants or agents from terminating the contract and employment of the applicant without following the lawful procedures for termination as set out in Public Service Regulations 1961.

• (viii) An Order [of] Mandamus compelling the 3rd respondents to act according to law and advise the 1st and/or 2nd respondent on the propriety of transferring and/or reassigning the applicant to another division in the Ministry of Finance and the Public Service.

• (ix) An Order of Prohibition prohibiting the 3rd respondent from giving effect to the decision of the 1st and/or 2nd respondent in effecting a transfer and/or reassignment of the applicant.

• (x) An interim and interlocutory injunction against the 3rd respondent restraining it from making any recommendations to the Governor General concerning the filling of the post of Commissioner General Tax Administration Jamaica until the issues herein are determined by this Honourable Court.

• (xi) A permanent injunction restraining the respondents by themselves or their servants and/or agents from terminating the contract and employment of the applicant without following the procedures prescribed by law for the determination of employment of public officers.”

15 In the grounds in support of the application, it was contended, among other things, that (i) neither the MOF nor the FS was empowered to terminate the respondent's contract otherwise than in accordance with the provisions of the Constitution and the PSR; (ii) the respondent had a legitimate expectation that, in the absence of misconduct on her part or any reasonable ground for terminating it, the contract would be renewed on similar terms and conditions; (Hi) neither the FS nor the PSC was empowered to transfer or reassign the respondent from her statutory post of CGTA unless there is an equivalent post in the MFP, or for good and sufficient reasons; and (iv) the assignment of any person other than the respondent to the post of CGTA, in circumstances where she is fit, willing and able to perform her functions, is null and void.

16 On 26 July 2013, Campbell, J. granted a without...