Wray (Samuel) v The University of the West Indies

JurisdictionJamaica
Judge DOWNER, J.A. , PANTON. J.A. , SMITH. J.A. , DOWNER JA:
Judgment Date30 July 2004
Neutral CitationJM 2004 CA 31
Judgment citation (vLex)[2004] 7 JJC 3013
CourtCourt of Appeal (Jamaica)
Date30 July 2004
IN THE COURT OF APPEAL
BEFORE:
THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH J.A
BETWEEN:
SAMUEL WRAY
PLAINTIFF/APPELLANT
AND:
THE UNIVERSITY OF THE WEST INDIES
DEFENDANT/RESPONDENT
Raphael Codlin for the Appellant
Dennis Goffe Q.C., and Dave Garcia instructed by Myers Fletcher and Gordon for the Respondent

EMPLOYMENT LAW - Professorship - Tenure as professor - Breach of contract -Whether the respondent was empowered to change the appellant's employment status from Professor to Senior Lecturer without his consent

ORDER

DOWNER JA:

By a majority [Panton, Smith JJA;(Downer JA dissenting)], appeal dismissed. Order of the court below affirmed. Costs to the respondent to be taxed if not agreed.

DOWNER, J.A.
1

Dr. Samuel Wray who holds the degree of Doctor of Philosophy in Psychology from the University of Hull has been a long outstanding member of the medical faculty at the University of the West Indies, Mona. He was Dean of that Faculty for many years. There is no dispute that he was appointed as a Lecturer in Psychology in the Department of Psychiatry on 6 th September 1973, and promoted to Senior Lecturer from 12 th October 1979 to 30 th September 1982 on indefinite tenure. What is disputed is his tenure as Professor and whether the University was empowered to "revert" him to the post of Senior Lecturer pursuant to his contract without his consent. Donald McIntosh, J. dismissed Dr. Wray's claims as to the duration of his professorship and as he was aggrieved by that decision, he has appealed to this Court. The best way to understand the nature of this dispute is to examine the correspondence between Dr. Wray and the University. The effect of those letters must then be determined against the background of the University's status and the general law of contract. As for the status of the respondent, it is a chartered corporation and it is financed by contributions on a continuing basis from a number of West Indian countries.

2

There are some matters which ought to be pointed out at the outset. The record of proceedings is contained in three volumes. Volume I contains the pleadings, the judgment of Donald McIntosh J. together with the written submissions of Counsel. Volume II contains the exhibits and the third Volume, which is not numbered, contains the notes of evidence. It is a complicated case and the issues were not properly explored in the Court below. The contract of employment was examined by the plaintiff's counsel against the Revised Statutes and Ordinances of the University and by no one else. Equally, there was exhibited Rules for Senior Academic Staff to which scant reference was made in the judgment below, although it was relied on in this Court. It is necessary to make these points because this is a Court of rehearing. We perform our duties against the background of the assessment of the evidence in the Court below, and the construction of the relevant documents and statutes. When we are obliged to do this for the first time to dispose of an appeal, we have to combine the duties of a judge of first instance and the duty of a Court of rehearing. Such a situation is undesirable especially in so important a case. Be it noted that the University gave no evidence at the trial.

3

History of appointment to the Chair of Mental Health

4

There are terms in the letter of appointment as Senior Lecturer dated April 30, 1979, which are of importance and should be stated. Paragraph 2 at page 3 of Volume II of the Record reads:

  • "2. The appointment will take effect from 1 st October, 1979, to 30 th September, 1982, on indefinite tenure. The appointment is nevertheless terminable by six months' notice in writing on either side given to terminate not earlier than March 31 in any academic year. The retiring age is 60 years, but may be extended to 65 years on the invitation of Council, subject to the same conditions of notice.

  • 3. The appointment is subject to the Charter of the University and to its Statutes, Ordinances, Rules and Regulations for the time in force."

5

This letter is significant as the issue of redundancy is raised in this case and the period of continuous employment runs from 1st October 1979 to the date of his dismissal 31 st December, 1996.

6

To demonstrate the esteem in which Dr. Wray was held, here is an unchallenged extract from his evidence at page 4 of the Notes of Evidence:

"I held both the position of Dean of Faculty of Medical Science also University Dean of the Faculty of Medicine. U.W.I, has three faculties; Mona- Jamaica, Cave-Hill Barbados, St. Augustine-Trinidad and Tobago. There are Campus Administrations. There are University Administrations. In 1976 when I became Dean of Faculty of Medical Science on 20 th February 1976, there was one Faculty of Medicine that administered operations in Barbados and in Trinidad and Tobago. In fact there was one faculty in those days. In 1984 the University Council created three Campus Faculties of Medical Sciences each with a Campus Dean. But there was an overall University Faculty of Medical Science and one of the three Deans was appointed by the Senate to be the University Faculty Dean. I was appointed in 1984 for four years and again in 1990 – 1991. From Senior Lecturer on 10 th March, 1987, I was appointed when the title of Professor of Neuropsychology was conferred on me by the University Council of the West Indies."

7

It is against this background that the issue of his Professorship must be considered. Here is the relevant extract from the letter of appointment from the Acting University Registrar at page 5 of Vol. II of the Record:

"May 1, 1987

Professor S. R. Wray

Faculty of Medical Science

UWI

Mona

Dear Professor Wray,

I am directed by the Council to offer you the post of Professor in Neuropsychology in the Department of Child Health, University of the West Indies, Mona.

  • 2. The appointment will take effect from March 11, 1987 to September 30, 1989 in the first instance. The appointment is nevertheless terminable by six months' notice in writing on either side given to terminate not earlier than March 31 in any academic year. The retiring age is 65 years.

  • 3. The appointment is subject to the Charter of the University and to its Statutes, Ordinances, Rules and Regulations for the time being in force.

  • 4. The appointment is full-time and no outside employment may be undertaken without the consent of the University. Your duties will be as arranged by the Head of the Department of Child Health."

8

There are four points to note. The first is that it was for upwards of two years in the first instance. Secondly, the post was subject to the Charter, Statutes, Ordinances, Rules and Regulations of the University. Thirdly, as the Professorship was for upwards of two years in the first instance there was a reasonable expectation on both sides that it would be continued, although it could be terminated with six month's notice on either side. Fourthly, he was appointed in the Department of Child Health.

9

It is clear that in terms of appointments this was a Personal Professorship within intendment of Rule 29(v) of the New and Amended Ordinances at page 68 of Volume II of the Record. Be it noted that once the title Professor is conferred. Rule 53(e) of the Ordinances obliges the Estimates Committee to be responsible for financial provision. As for the status of the Ordinances Rule 23 of the Charter at p. 18 of Volume II of the Record reads:

"23. In the case of conflict the provisions of this Our Charter shall prevail over those of the Statutes, Ordinances and Regulations; the provisions of the Statutes shall prevail over those of the Ordinances and Regulations; and the provisions of the Ordinances shall prevail over those of the Regulations."

10

The initial document, an invitation to treat, was an advertisement in the Gleaner which reads as follows at page 7 of the Record:

"CHAIR IN MENTAL HEALTH, DEPARTMENT OF CHILD HEALTH

Applications are invited from suitably qualified Psychologists and Psychiatrists with extensive experience in research, training and postgraduates in medical sciences, undergraduate teaching of medical students and of working with Caribbean Governments in establishing health care projects. This is a new post established within the Faculty of Medical Sciences and will be for a duration of two years. Continuation of the appointment beyond the stipulated period will be subject to funding. Applicants should have expertise in the field of neuropsychological aspects of mental health in children and adolescents in a family context, and research experience in the neuropharmacologicai basis of brain function and behavioural mechanics underlying mental disorders particularly in the area of psychoactive drugs and other abuses."

11

The New and Amended Ordinances at page 74 of Volume II of the Record require vacant posts to be advertised unless the relevant Appointment Committee decides otherwise.

12

Although some of the fundamental advances in medicine are made by scientists who are not qualified in medicine, medical doctors are a sensitive breed. Dr. Wray handled this issue with tact. Here is how the conflict emerged in the first instance at page 5 of the Notes of Evidence:

"The style of the chair was objected to by some members of the faculty especially my colleagues — psychiatrists. They felt neuropsychology would more be descriptive of a Psychologist than mental health. As a consequence this went back to council and chair was called: Professor Neuropsychology."

13

The scope and funding of the Professorship was well understood by Dr. Wray. Here is how he stated it at page 5 of the Notes of Evidence:

"I was involved in discussions leading up to establishment of the chair. I led the discussions as Dean of the...

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