IN THE HIGH COURT OF JUSTICE (Sub-Registry, Tobago) BETWEEN SETH QUASHIE. And

Transcription

1 REPUBLIC OF TRINIDAD & TOBAGO: IN THE HIGH COURT OF JUSTICE (Sub-Registry, Tobago) Claim No. CV BETWEEN SETH QUASHIE And Claimant THE TOBAGO HOUSE OF ASSEMBLY Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Ms. D. Moore-Miggins for the Claimant. Mrs. I. Melville for the Defendant.

2 Judgment 1. By an ex parte application dated 24 th October 2013, the Claimant applied for leave to apply for Judicial Review and the court granted leave by order dated 29 th October By Fixed Date Claim Form filed on the 12 th November 2013 and supported by the Claimant s affidavit sworn to on the same date, the Claimant made the application for judicial review. In his affidavit in support the Claimant also relied on the facts deposed to in his previous affidavit in support of his application for leave to apply for Judicial Review. 3. In opposition to the Claimant s application the Defendant filed an affidavit in response on the 10 th January 2014 deposed to by Ethlyn John, Administrator in the Division of Health and Social Services in the Defendant. The Claimant then filed an affidavit in reply on the 24 th day of January Background 4. The Claimant was employed by the Defendant in the position of Human Resources Assistant for the period 18 th July 2012 to 17 th July His contract of employment came to an end by effluxion of time on the 17 th July 2013 and was not renewed. 5. The Defendant is a body corporate established under the Tobago House of Assembly Act Chapter 25:03 with responsibilities for the administration of the affairs Tobago. 6. In his claim for judicial review, the Claimant seeks to challenge the decision of the Defendant not to renew his contract of employment and its decision not to inform him of both the decision and the reason for the decision until 30 th September The Claimant seeks, inter alia, an order of certiorari to quash this decision on the grounds of: a. Natural Justice Page 2 of 16

3 b. Legitimate Expectation c. Abuse of Power d. Ultra Vires and Illegality e. Unconstitutionality 7. The claim on the ground of breach of natural justice was argued by the Claimant on the basis that: a. He was not informed of the decision not to renew his contract until 30 th September 2013; b. He was not informed of the reason for the non-renewal until the 30 th September c. He was not informed of the allegations made against him until 30 th September 2013 and was therefore not given an opportunity to respond to the allegations made against him. These allegations, he alleges, formed the basis of the decision not to renew his contract. 8. The claim on the ground of Legitimate Expectation was argued on the basis that: a. By letter dated 14 th March 2013 the Claimant was invited to apply for vacation leave, his gratuity payment and renewal of his contract. He says that pursuant to this letter, in or around May 2013, he did apply for vacation leave, his gratuity payment and renewal of his contract. Thus the Claimant felt that this invitation by the Defendant signalled to the him that in the eyes of the Defendant he had carried out his duties in an efficient manner and if he so desired, his contract would be renewed; b. Up to the time that he had written indicated his desire to renew his contract, he had not been told by the Defendant of any dissatisfaction in his performance. Further, that in or around 13 th June 2013, an appraisal report was completed by his supervisor and it did not contain any negative comments on his performance. According to the Claimant the performance appraisal had stated that he performed Page 3 of 16

4 his duties with effectiveness and efficiency and thus had not negatively impacted on his expectation that his contract would be renewed. 9. On the ground of Abuse of Power, the Claimant argued that: a. There was an unreasonable, irregular or improper exercise of discretion when the Defendant came to the decision not to renew his contract after having listened only to his accusers and not informing him of the allegations made against him; b. The Defendant acted with fraud, bad faith or improper purpose or applied irrelevant considerations in that the process followed demonstrated that no proper purpose or relevant consideration was given to the issues. c. The Defendant acted in the absence of evidence on which a finding or assumption of fact could reasonably be based. 10. The Claimant further grounded his application on Ultra Vires and Illegality in that: a. The Defendant erred in law in making its decision not to renew his contract; b. The Defendant acted on instructions from an unauthorized person. 11. Finally, the Claimant also grounded his application on the unconstitutionality of the decision, in that he was deprived of his constitutional right to property. Issues 12. Judicial review is the means by which the courts supervise the exercise by public bodies of their public law functions. In this regard, several preliminary issues were raised by the Defendant and these must be treated with before the court can proceed to consider whether the decision by the Defendant was unlawful. The first, which is not in dispute, is whether the Defendant is a public body exercising statutory powers. The other preliminary issues are: Page 4 of 16

5 a. Whether the function being performed in exercise of those powers was a private or public one. See R. (on the application of Hopley) v Liverpool HA [2003] P.I.Q.R. P10 b. Whether there is an alternative remedy available. Private or Public Function 13. The appropriate test for determining of whether the decision is a matter of public law is the determination of the issue as to whether the decision maker is performing a public function: see R v Panel on Takeovers and Mergers, ex p Datafin [1987] 1 QB 815 and R. v Lord Chancellor Ex p. Hibbit & Saunders [1993] COD The function in question in this case touches and concerns a decision not to renew the Claimant s contract. The Defendant, by section 25(2)(b) of the Tobago House of Assembly Act Chap 25:03 has the capacity to enter into contractual relations to equip itself to carry out its basic functions. The amenability tests for contractual situations were discussed in De Smith s Judicial Review 6 th Edition, Chapter 3 para It was stated: The tests applied by the courts to determine whether a function involving a contract is susceptible to judicial review have been criticised as overly complex and liable to divert the attention of the court away from the substance of the complaint. In the orthodox approach, the court assumes that the fact that the source of a public authority s power is statutory is in and of itself insufficient to make a dispute about a contract amenable to judicial review; the court therefore goes on to consider whether there is some additional sufficient public element, flavour or character to the situation. A more straightforward approach (though not one widely applied by the courts) would be to say that if the contractual decision in issue involves that exercise of a statutory power, then in principle it should be subject to judicial review and the court should consider whether any of the grounds of review have been made out. Page 5 of 16

6 15. Practically, the orthodox approach is, in the court s view to be preferred. In The North West Regional Health Authority v Ameena Ali C.A.CIV.11/2005, the court adopted a similar approach. Their Lordships of the Court of Appeal in that case applied the test enunciated in R v. Derbyshire Council ex parte Noble [1990] I.C.R In ex p Noble, Woolf L.J. observed at page 819: As I understand the approach which the courts now adopt, and which has been made clear in a series of cases, it is to look at the subject-matter of the decision which it is suggested should be subject to judicial review and by looking at the subject-matter then come to a decision as to whether judicial review is appropriate. That approach is an approach which can be found, for example, in Reg. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] Q.B. 811, in which this court had to decide whether or not the issue or refusal to issue a new passport to the applicant was a matter which was appropriate for judicial review. Having referred to the speeches in the Civil Service Unions v. Minister for the Civil Service [1985] I.C.R. 14, O Connor LJ, in giving the judgment of the Court, said [1989] Q.B. 811, 817: Three of their Lordships, Lord Diplock, Lord Scarman and Lord Roskill unequivocally held that judicial review did lie of decisions taken under the prerogative. Lord Scarman in his speech stated that it was not the origin of the administrative power, but it was the actual factual application which had to be considered. I would echo those remarks of O Connor LJ and suggest that what one does is look at the actual, factual application. 16. Different types of considerations are capable of providing the necessary public element and the court thinks that in this case it is to be found in looking at the subject-matter of the decision. Page 6 of 16

7 17. In Ex p. Hibbit & Saunders (supra) the Claimants were unsuccessful in their tender to provide court reporting services in relation to one group of courts. The application was based upon an alleged breach of legitimate expectation that the Defendant would not, by post-tender discussions, invite some tenderers and not others to submit revised bids. The Court held that the applicants had been unfairly treated but that the decision was not amenable to judicial review. It was held that the decision lacked a sufficient public law element and that it was not a sufficient basis of claim that the Department was a public body carrying out governmental functions and appointing persons to a public office. A public body was free to negotiate contracts and something additional was necessary over and above the fact that the negotiator was a public body to impose on that body a public law obligation. R v Derbyshire CC, Ex p. Noble [1990] ICR 808 was also cited in this case at p Rose LJ noted that the test to be applied is to look at the subject matter of the decision which it is suggested should be the subject of judicial review and by looking at that subject matter, to come to a decision as to whether judicial review is appropriate. 18. In applying that test, Lord Justice Rose found that neither the statutory requirement for the appointment of shorthand writers nor the importance of their functions provided a framework for the appointment of persons to perform those functions. Further, while the fact that a commercial function was being performed did not take the case out of the ambit of public law, it was not appropriate to equate tendering conditions, attendant on a common law right to contract, with a statement of practice or policy in a public sphere which is in the especial province of the State and where, in consequence, a sufficient public law element is apparent. 19. Similarly, in R. (on the application of Menai Collect Ltd) v Department for Constitutional Affairs [2006] EWHC 724, the court refused an application for judicial review of the decision to reject the Claimants tender and not award the Claimants a contract for the provision of enforcement services for Magistrates' Courts. The application was refused on the ground that although the department proposed to exercise its power to contract under the Courts Act 2003 s.2(4), that did not confer the necessary Page 7 of 16

8 public element to render its decision amenable to judicial review. The court stated that unless there was a public law element in the decision, and unless the obligation involved suggested breaches of duties or obligations owed as a matter of public law, the decision would not be reviewable. 20. The Claimant s evidence in the present case was that he entered into a contract for a one year period to commence on the 18 th July 2012 and end on 17 th July He stated that he was one of about twelve persons employed under similar terms around the same time. He claimed however that while his contract was not renewed the contracts of his colleagues were renewed with the exception of one woman, whose contract was terminated during the tenure of her employment. 21. According to the Claimant, he received a letter dated 14 th March 2014 inviting him to apply for vacation leave, his gratuity payment under the contract and to indicate his desire for a renewal of his contract. He stated that he did apply for the foregoing in or around May 2013.The Claimant gave evidence that by letter dated 29 th May 2013, his vacation leave was approved. 22. The Claimant testified that by June 2013, he had still not been informed whether his contract would be renewed and he began making inquires of his supervisor and/or the Administrator of the Division of Health and Social Services. He stated that his contract expired on the 17 th July 2013 without being informed of whether it would be renewed. The Claimant s evidence was that other than one lady whose contract had been terminated during her contract, his was the only contract not renewed among his colleagues who had been hired at the same time, and this was notwithstanding he had been given a good performance appraisal. 23. The Claimant gave evidence that on the 22 nd July 2013, he was called to a meeting by the Administrator and was verbally informed that his contract would not be renewed because during his contract he had: Page 8 of 16

9 a. Tampered with the Defendant s internet; b. Hired a Community-based Environmental Protection and Enhancement Programme (CEPEP) worker; c. Hired a ghost gang for CEPEP; d. Forged a signature on a letter requesting internet services; e. Been seen speaking on the phone on the compound. 24. The Claimant denied these allegations and stated that during his period of employment the Defendant never informed him either orally or in writing of these accusations made against him. 25. On behalf of the Defendant, Ms. John testified that the terms and conditions for staff working on fixed term contracts are governed by the terms of the relevant contracts. Further, she stated that notwithstanding the superseding duty of the Chief Administrator to determine all contract engagements, contract re-engagement is at the discretion of the Administrator guided by the Guidelines for Contract Employment in the THA and the Guidelines for Contract Employment in Government Ministries, Departments and Statutory Authorities subject to the Statutory Authorities Act Chap 24: The provision with respect to renewal in the Guidelines for Contract Employment in the THA is as follows: FURTHER EMPLOYMENT i. Three (3) months prior to the completion of a term of service, the person engaged shall give notice in writing to his/her Administrator through the relevant Head of Department whether he/she desires to remain in the employment of the Tobago House of Assembly and the Executive Council shall decide whether it would reengage him/her or offer him/her further employment. ii. If the Executive Council offers the person engaged further employment, the engagement shall be on such terms and for such period as may be mutually agreed. Page 9 of 16

10 27. The Guidelines for Contract Employment in Government Ministries, Departments and Statutory Authorities subject to the Statutory Authorities Act Chap 24:01 speaks to an extension of the period of a subsisting contract (a new contract). It provides that: j. an extension of a period of a subsisting contract shall be subject to the approval of Cabinet, which must be obtained prior to the expiry of such contract; k. Where a person is to be engaged for a further period (i.e. a new contract) the approval of Cabinet must be sought for the retention of the contract position, if not already obtained; 28. Ms. John testified that there is no policy within the Division or the THA which provides for the automatic re-engagement of a person who served on a fixed term contract. She stated that in order for a person on a fixed term contract to be reengaged, the Secretary of the Division makes a positive indication and an offer letter is sent to the person to which offer the person desirous of reengagement must respond with acceptance. 29. Ms. John s evidence was that the decision not to renew the Claimant s contract is not open to judicial review as: a. It was a matter of private law; b. The Claimant did not hold an office which was underpinned by specific statutory provisions and there were no statutory underpinnings in relation to dismissal in the Claimant s terms and conditions of the contract; c. Employment by a public authority does not itself infuse an element of public law into the contract of employment. Parliament has not created special rights for the Claimant. d. The terms of the contract were no longer subsisting and any reference by the Claimant of the dismissal terms is not applicable. Page 10 of 16

11 30. The court is of the view that the Defendant is free to negotiate contracts of employment and this includes the freedom to choose to renew or not to renew contracts. While a procedure for an application for renewal of contract exists, there appears to be no structure or policy in relation to the selection criteria to be applied in the case of a further contract. Indeed none has been provide to this court. The procedure in relation to further contracts, it appears therefore has no statutory basis. The court is of the view that there exists no obligation on the Defendant to renew a contract of employment upon expiration of time, it is a decision entirely based on discretion in the context of a contract for services 31. Further, there is no statutory underpinning in the contract of the Claimant. In NWRHA v Ali (supra) the court reasoned that the case contained a sufficient element of public law, and, accordingly, judicial review was the appropriate means by which the challenge to the decisions of the NWRHA should be pursued. The court found that there was statutory underpinning of section 29(4) of the Regional Health Authorities Act into the Claimant s contract and that it was sufficient to justify judicial review of the decisions of the NWRHA. 32. This is not the case in the instant case. There was no statutory basis in relation to the Claimant s contract and therefore no statutory basis for rehiring. This was in essence a matter of private contract law. There was clearly no sufficient public element, flavour or character in these circumstances as would cloak the Defendant with the exercise of a public function when deciding whether to grant a further contract to the Claimant. The court therefore finds that the Defendant, in making its decision, was not performing a public function. Alternative remedy 33. Judicial review is or should be an avenue of last resort where other remedies are available. The existence of other avenues of protection and the question of whether these have been or can be pursued is a fundamental tenet which affects the invocation of the Page 11 of 16

12 court s jurisdiction to intervene in its supervisory capacity. It is to be noted at the onset that the Claimant failed to disclose to the court that he was in the process of pursuing the issues herein at both the Office of the Ombudsman of Trinidad and Tobago and at the Equal Opportunity Commission (EOC). 34. In relation to the claim made at the Ombudsman, the Claimant sought assistance with regard to the delay by the Defendant in paying him the gratuity owed to him under the completed contract. In this regard the court was informed by all parties that prior to the substantive hearing in this case, the said gratuity was paid by the Defendant and accepted by the Claimant. In those circumstances the Claimant withdrew that aspect of his claim on the day of hearing so that this issue is no longer relevant to the claim. 35. In the complaint lodged at the EOC, the Claimant alleged discrimination by the Defendant in the way it has refused or deliberately omitted to offer him employment, contrary to s.8 of the Equal Opportunity Act Chap 22:03. He raised the same allegations at paragraph 23 above as being the reasons for his dismissal. 36. In Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720, 728, Lord Widgery C.J. stated: "it has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy." In Ex parte Waldron [1985] 3 W.L.R. 1090, 1108, Glidewell L.J., in citing this passage, said: "Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by judicial review when an alternative remedy is available." 37. Being that these are the same issues being raised on this application and that the complaint is being pursued by the EOC, it is abundantly clear to this court that an Page 12 of 16

13 alternative remedy does in fact exist. Not only does it exist, but it is being pursued at the same time as this judicial review claim. There is also no indication that any delay by the EOC in acting on the complaint would have occurred as letters were promptly written by it to the Defendant in an effort to address the issues in a timely manner. This operates against the claim in two ways. Firstly, the failure of the Claimant to disclose to this court such a fundamental fact, namely, that the Claimant was pursuing an alternate remedy amounts to a breach of duty by the claimant in this case to disclose all relevant material which may affect the granting of leave. But more importantly, and of more relevance at this stage of the proceedings is the fact itself that the Claimant is pursuing an alternative remedy and therefore cannot avail himself of the supervisory jurisdiction of the high court. The court therefore does not agree with the submissions of the Claimant that this remedy is not a true remedy as no sanction is attached to a finding by the EOC. One could hardly envisage a circumstance in which a public body such as the Defendant would act inconsistent with a finding of the EOC specifically directed to the actions of the THA. Grounds 38. In the event that the court is wrong the court has considered the grounds put forward by the Claimant and finds that they can be succinctly disposed of. Natural Justice 39. The breach complained of in this regard is in relation to the two fundamental rights accorded to the Claimant by the rules of natural justice or fairness, viz to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made: O Reilly v Mackman [1982] 3 All ER 1124 (HL) 1130 b. Page 13 of 16

14 40. There was no obligation to renew the Claimant s contract. Although the Claimant alleges that the reasons for non-renewal were that at paragraph 23 above, there is no evidence that those were considerations taken into account. In fact, by letter dated 30 th September 2013, attached to the Claimant s affidavit in support of his application for leave, from the Defendant s attorney to the Claimant s attorney, Counsel stated that the allegations were to a large extent initiated by the Claimant. There is no indication in the letter of an acceptance by the Defendant that those were the bases for non renewal. 41. In addition to this, there being no obligation to renew, there is equally no obligation imposed on the Defendant to hear the Claimant on the decision not to renew. Legitimate Expectation 42. Legitimate expectation is defined as an expectation which, although not amounting to an enforceable right, is founded on a reasonable assumption which is capable of being protected in public law. It enables a citizen to challenge a decision which deprives him of an expectation founded on a reasonable basis that his claim would be dealt with in a particular way: Kenny Gopaul v The Public Service Commission CV In R (on the application of Bibi) v Newham LBC Schiemann LJ provided guidance on the circumstance where a legitimate expectation arises: In all legitimate expectation cases, whether substantial or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. 44. In answer to the first question, the court is of the view that the Defendant by it s letter merely invited the Claimant to indicate whether he would like to be considered for rehiring. The Defendant did not by its letter promise to rehire the Claimant. The Page 14 of 16

15 procedure set out in the Guidelines for Contract Employment in the THA requires that the person interested in being rehired indicate same to the Administrator. The ordinary interpretation of these guidelines makes it unreasonable to infer an expectation that once an indication is forthcoming from a person who desires to be rehired that he will be. The Defendant has not therefore acted unlawfully in relation to its commitment. 45. Further, a performance appraisal is an appraisal of past performance. It however, cannot on its own create an expectation that the person appraised would be rehired purely on the basis that his appraisal showed no complaint against him in the performance of his duties. This is not on its own a reasonable assumption or expectation. Neither is the combination of both factors, namely a good performance appraisal coupled with a request for a further contract. Abuse of Power, Ultra Vires and Illegality 46. These can be dealt with collectively because the Claimant based them on the assumption that the decision not to rehire was made in consideration of the alleged accusations which he claims were made against him. 47. In short, there is no evidence that these accusations were considered in the main. While he claims that persons contracted in similar positions were rehired he has failed to bring evidence establishing that this is at all true. 48. The accusations related to incidents alleged to have occurred during his contract, thus any issue on being heard on the accusations would have been material during the tenure of that contract particularly where these issues do not form the basis for the refusal of the Defendant to rehire the Claimant. Again, there was no obligation to renew the Claimant s contract and a decision taken not to renew, particularly in light of the absence of any policy on the exercise of the discretion to renew, is not a decision on which the Claimant must necessarily be heard. Page 15 of 16

16 Unconstitutionality 49. It is unlawful for a public authority to act in a way which is incompatible with a fundamental human right. An entitlement to money is a property right. The Claimant had originally claimed an infringement to his right to property. However, it is not the case that the Defendant refused to pay to the Claimant his gratuity which was owed to him under his contract. The gratuity was in fact been paid during the trial and accepted. The evidence is and has always been that the gratuity was being processed by the Defendant. There can therefore be no breach of the fundamental right in those circumstances and in any event no arguments were made thereon. Disposition 50. The judgment of the court is therefore as follows: a. The claim is dismissed. b. The Claimant is to pay to the Defendant the costs of the claim to be assessed by the Registrar in default of agreement. Dated this 17 th day of June, Ricky Rahim Judge Page 16 of 16