Bentley Roach v Attorney General
| Jurisdiction | British Virgin Islands |
| Judge | MATTHEW J. Ag |
| Judgment Date | 31 January 2002 |
| Neutral Citation | VG 2002 HC 2 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM No. BVIHCV 2001/0074 |
| Date | 31 January 2002 |
IN THE HIGH COURT OF JUSTICE (CIVIL)
Before: His Lordship Justice Matthew (Acting)
CLAIM No. BVIHCV 2001/0074
Mr. F. Belle for the Claimant
Mr. B. Aziz and Ms. Shona Griffith, both Senior Crown Counsel, for the Defendant
Judicial Review — Decision by BVI government to dismiss Claimant from his employment without notice or a fair hearing — Claimant was a contract worker — Contract stipulates how employment can be terminated by the government — Claimant advised by letter without hearing that contract has been terminated because of unsatisfactory performance — Claimant's job performance required a proper investigation before action was taken to terminate his services — Minister has a duty to act fairly — Legitimate expectations — Whether the principles of natural justice were applied
Constitutional Law — Section 51 and 52 of BVI Constitution considered — Constitution requires that Public Service Commission consulted before persons are removed from public offices. Public Service Commission not consulted — Constitution is supreme over other legal instruments by implication — Whether decision was null and void
According to Mr. Aziz, this case involves the application of disputed law and undisputed facts.
By order dated August 9, 2001, the Claimant was granted leave by Benjamin J. to apply for judicial review and an order to quash the decision of the Government of the British Virgin Islands to dismiss him from his employment as Teacher Grade 3 assigned to Her Majesty's Prison without notice or a fair hearing to determine any charge against him pursuant to section 47 of the Public Service Regulations.
Subsequent to the said Order, the Claimant filed a fixed date claim on September 19, 2001 seeking declarations that his dismissal was wrongful, null and void and of no effect.
In support of his claim, the Claimant filed an affidavit on September 21, 2001. The evidence is quite lengthy and is the only evidence before the Court in this matter. No evidence was forthcoming from the Defendant. I shall mention below only some of the things deposed in the affidavit.
In his affidavit, the Claimant deposed that he was a 32 year old Barbadian born trained teacher of some 11 years experience and that during the period 1994–1998 he taught at the BVI High School as a contract employee with the BVI Government.
He commenced working at H.M.P. on November 1, 2000 on a contract for a period of two years at a salary of $27,600.00 per annum, housing allowance of $450.00 a month and 36 days vacation leave per annum. The contract also provided for a tax free gratuity of 20% at the conclusion of that period.
The contract was tendered as an exhibit to his affidavit. The relevant clauses of the contract will be dealt with in more detail below but it should be noted that clause 2 seems to have incorporated in the terms of his agreement the General Orders of Government, the Public Service Regulations and other Governmental Instruments.
Clause 8 is captioned ‘Termination of Engagement’. Paragraph (1) of Clause 8 in part is as follows:
‘The Government may at any time terminate the engagement of the person engaged on giving him three months' notice in writing or on paying him one month's salary.’
On May 29, 20001 the Superintendent of Prison sent a memorandum to the Claimant advising him that he would be reviewing his performance by June 30, 2001 and if there was no notable improvement, he may be forced to have his employment terminated.
Another memorandum by the Superintendent of Prisons followed on July 3, 2001. It is very short so I reproduce it below:
‘You are hereby directed to proceed on vacation leave immediately. Further correspondence will be forwarded to you.’
Further correspondence did come to the Claimant when a letter to him dated July 11, 2001 and written by the Chief Personnel Officer was handed to him on July 12, 2001. The letter is also exhibited but the crucial second paragraph reads—
‘I am directed by His Excellency the Governor to advise you that as a result of unsatisfactory performance, the decision has been taken to terminate your engagement in accordance with the terms of your contract, and with immediate effect.’
At paragraph 12 of his affidavit the Claimant stated:—
‘In rejecting the charge of non-performance I must state that on commencing my contract at HM Prison I was inspired to formulate a proposal for an education programme for the prison’.
He exhibited the proposal, which was handed over to the Superintendent of Prisons. He never heard anything more about it except that the Visiting Committee was impressed.
The Claimant started teaching in November 2000. The subjects taught were Mathematics, English and Social Issues. At the time he had seven students. The subjects taught reflected pertinent discussions which the Claimant had with personnel in the Department of Education who saw the Prison's education system as being along the same line as the adult education programme which they were planning to bring on stream.
The Claimant pointed out in his affidavit the difficulties caused by the distraction of students to the availability of paying work in prison; the implementation of the preferred General Education Diploma programme of the U.S.A. which had no vocational component; the different educational levels of the three or four core students; and the competition by other interests for use of the available facilities.
In addition the Prison Rehabitation Programme which was another exhibit stated:—
‘Legally, it is not mandatory for prisoners to attend classes.’
Some of the inmates wanted to know what was in the classes for them.
On February 13, 2001 the Claimant sent a report to the Superintendent of Prisons in which he outlined certain problems. The response of the Superintendent was that the Claimant was not utilising his skills and he expected the Claimant to motivate the inmates. At no time did the Superintendent sit down with the Claimant to discuss the various problems relative to performance.
In the final paragraph of his affidavit the Claimant stated that he sought damages for the loss suffered as a result of his wrongful dismissal from the Prison Service of the BVI.
In his written submissions, Learned Counsel for the Defendant stated that the case raises one fundamental issue, namely whether or not the termination of the services of the Claimant by the Government without following the Disciplinary Procedures set out in Regulation 47 of the Public Service Commission Regulations is wrongful, null and void and of no effect.
Before I deal with this fundamental issue I should like to state in brief the main submissions made firstly by Learned Counsel for the Claimant and secondly, those made by Learned Counsel for the Defendant.
Counsel submitted that the issue of public officers has to do with the Separation of Powers and the insulation of public officers from the Executive. Counsel submitted that the Claimant is a public officer and his contract is not one of master and servant.
Counsel raised the issues of legitimate expectation and natural justice under the broad head of fairness. Counsel referred to the Constitution of the British Virgin Islands and in particular sections 51 and 52.
Counsel said that the letter written by the Chief Personnel Officer left doubt as to whether the Public Service Commission was involved in the termination of the services of the Claimant. He contended that the procedures required by the Public Service Regulations were not excluded by the contract.
In support of his submissions Counsel relied on the following authorities:
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(1) Handbook of Conflict Resolutions by Deutsch and Coleman;
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(2) Wade on Administrative Law;
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(3) COUNCIL OF CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE 1985 1 A.C. 2;
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(4) ATTORNEY GENERAL V LOPINOT LIMESTONE LTD. 34 W.I.R. 299
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(5) CHIEF IMMIGRATION OFFICER OF THE BVI V BURNETT (1995) 50 W.I.R. 153
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(6) PHOTO PRODUCTION LTD V SECURICOR TRANSPORT LTD. 1980 A.C. 827
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(8) ENMORE-HOPE V SHAW 21 W.I.R. 275
Counsel submitted that the procedure contained in the Public Service Commission Regulations Part VI Clause 47 is inapplicable to the facts and circumstances of the case.
Counsel did not dispute that the Claimant was a public officer but contended that clause 8 of the contract conferred a specific right on the Government to terminate his contract.
Counsel referred to Regulation 27 and in particular Regulation 27(c) which state:—
‘The services of an officer may be terminated only for the reasons stated hereafter—
(a) where the officer holds a permanent appointment……..
(b) where the officer holds a temporary appointment……..
(c) where the officer is on contract his services shall be terminated in accordance with the terms of the contract.’
As regards the contract Counsel looked at the provisions of clause 6 which dealt with termination as a result of ill health; clause 7 captioned ‘Dismissal’ which he stated dealt with termination for cause; and clause 8 which was termination without giving any reason.
Counsel contended that the Defendant acted under...
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