Berenice Freeman Claimant v The Attorney General Chief Agricultural Officer Department of Agriculture Defendants

• Jurisdiction: British Virgin Islands
• Judge: JOHN J
• Judgment Date: 02 May 2012
• Neutral Citation: VG 2012 HC 4,[2012] ECSC J0502-4
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHCV2008/0383
• Date: 02 May 2012

[2012] ECSC J0502-4

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Claim No. BVIHCV2008/0383

Berenice Freeman

Claimant

and

The Attorney General

Chief Agricultural Officer

Department of Agriculture

Defendants

Appearances:

Ms. Tamara Cameron of Farara Kerins for the Claimant

Ms. Karen Reid, Senior Crown Counsel and Ms. Maya Barry, Crown Counsel, Attorney General's Chambers for the Defendants

PLEADINGS

JOHN J

1 Statement of Claim: The Claimant instituted a claim against the Defendants on the 4 ^th day of December, 2008, which claim was amended on 14 ^th October, 2009, claiming Damages for wrongful dismissal, in that she was wrongfully dismissed from the Department of Agriculture. Paragraph 6 of the Amended Statement of Claim particularizes the wrongful dismissal and she alleges as follows:

• (a) The Claimant was not granted a fair hearing in the proceedings before the Public Service Commission.

• (b) The Claimant was never informed of the results from the hearing from the Commission so that she could appeal the decision.

• (c) The Claimant was not given a fair hearing which is a breach of Natural Justice.

• (d) The Chairman verbally attacked the Claimant during the hearing.

2 The Claimant further pleads that on the 1 ^st of March, 2007 she was informed informally that disciplinary proceedings were to be instituted against her for misconduct. The Claimant was then called to a hearing at the Public Service Commission (hereinafter referred to as "PSC") but was not allowed to cross-examine her accuser nor was she allowed to call her witnesses that were available. The hearing at the PSC was aborted. The pleadings continue with a statement that the Claimant was informed by a letter dated the 14 ^th April, 2008 that she was retired. The Claimant at paragraph 5 of Amended Claim Form avers that she was not given proper notice of this fact. The Claimant has not to date received all of her remuneration from the Department. At paragraph 5 of the Amended Statement of Claim the Claimant alleges that at the time she was retired from the Department she had amassed 112 days of vacation leave that she had not been compensated for as at the date of Filing her claim. The Claimant therefore claimed:

• (a) Damages from wrongful dismissal

• (b) Loss of earnings for half salary from 1 ^st of March, 2007 to 31 ^st August, 2008 at $1,410.00 per month

• (c) Loss of earnings from 30 ^th September, 2008 at $3,820.00 per month and continuing

• (d) Loss of salary from one year up to the time the Claimant would have retired of $45,840.00 ie $3,820.00 for twelve (12) months.

• (e) Gratuity as per attached brochure from Human Resources.

3 The Defence: The Defendants assert that on 1 ^st March, 2007 the Claimant was formally informed that disciplinary proceedings had been instituted against her on three charges of misconduct. A full hearing in respect of the said misconduct had taken place before the PSC following which the Claimant was convicted of the said offences. The Defendants deny: that the Claimant was not allowed to cross-examine her accuser; that the Claimant was not allowed to call her witnesses that were available; and also that the hearing at the PSC was aborted.

4 Paragraph 4 of the Defence asserts as follows:

"4. In further answer to paragraph 3 of the Statement of Claim, the Defendants state as follows…

• a. That by the said letter dated 1 ^st March, 2007, which attached certain relevant memoranda; the Claimant was informed of the charges against her. She was asked to submit grounds on which she wishes to rely to exculpate herself by 7 ^th March, 2007.

• b. That subsequent to a meeting held by the PSC with the Claimant on 27 ^th March, 2007, the Claimant was given, by letter dated 18 ^th April, 2007, time to submit the grounds upon which she wishes to rely to exculpate herself by 24 ^th April, 2007.

• c. The Claimant submitted letter dated 24 ^th April, 2007 setting out her defence.

• d. That on 8 ^th May, 2007 a hearing was held before the PSC into the three charges of misconduct against the Claimant.

• e. The said charges were read to the Claimant and she entered a plea of not guilty to each charge.

• f. Evidence was lead in the presence of the Claimant who had every opportunity to cross-examine the witnesses and to call witnesses in her own defence.

• g. The Claimant gave evidence. The hearing was adjourned to 15 ^th May, 2007 for the hearing of further evidence.

• h. The hearing of 15 ^th May, 2007 was adjourned to 22 ^nd May, 2007 to facilitate the Claimant, who could not attend on the ground that she was ill.

• i. On 22 ^nd May, 2007 the PSC heard evidence from three other witnesses. The Claimant, who was present and had every opportunity to cross-examine the witnesses and call witnesses in her defence, gave further evidence.

• j. The PSC at a meeting following the hearing on the 22 ^nd May, 2007, reviewed the evidence and found the Claimant guilty of the charges.

• k. At the meeting, the PSC further decided that the Claimant ought to be dismissed from the public service but that in light of her twenty three (23) years in the service it did not wish for her to forfeit any benefits she might have accumulated over that period. These benefits would have been forfeited if she were simply to be dismissed as a result of her conviction on the said disciplinary charges.

• I. The PSC thus decided that the Claimant having been convicted of the said offences should be retired in the public interest so that she would be able to be paid whatever benefits she had accumulated during the period.

5 At paragraph 5 of the Defence, the Defendants further plead that the Claimant was called to a meeting of the PSC on 31 ^st May, 2007, which she did not attend, for the purpose of informing her of the decisions made by the PSC. The Defendants further state that on 5 ^th June, 2007, the Claimant attended a subsequent meeting of the PSC and was informed of its decision convicting her of the said offences and that a recommendation for her retirement in the public interest would be made to His Excellency, The Governor.

6 At paragraph 7 of the Defence the Defendants state that following the decision to retire the Claimant in the public interest, the Claimant was on 10 ^th December, 2008 informed that she was entitled to gratuity in the sum of US$41,254.13 as well as entitlement to pension. The Defendants also aver that the Claimant was paid the said sum by cheque dated 19 ^th December, 2008, which the Claimant accepted and cashed.

7 At paragraph 8 of the Defence the Defendants deny that the Claimant was wrongfully dismissed as alleged in paragraph 6 of her Statement of Claim.

8 At paragraph 10 of the Defence the Defendants admit that the Claimant had amassed 112 days of vacation leave at the time she was retired. The Defendants pleaded that the Claimant was informed by letter dated 2 ^nd February, 2009 that she would be paid for her vacation leave bi-monthly from 2 ^nd February, 2009 through 23 ^rd July, 2009. The Defendants further stated that these amounts have been paid by the Government to the Claimant. The Claimant was further paid salary arrears during her interdiction for the months of June and July, 2008 in the sum of US$3,055.00.

9 The Defendants deny that the Claimant was entitled to any relief sought on the grounds that:

• a. The Claimant was dismissed following a hearing into charges of misconduct against her at which she was present and gave evidence so that she was not wrongfully dismissed.

• b. The Claimant is not entitled to receive the half salary that was withheld during her period of interdiction from duty as entitlement to payment of same only arises under regulation 37 of the PSC Regulations where the Claimant has been found not guilty of the charges against her.

• c. The Claimant was paid all the benefits that had accurred to her and she is not, therefore, entitled to any further payment.

10 The Defendant at paragraph 12 of their Defence further assert that the Claimant is estopped by conduct from claiming that she was wrongfully dismissed. The particulars of estoppel which the Defendants rely on are;

• a. The Claimant accepted a cheque for the sum of US$41,254.13 from the Government as gratuity following her retirement in the public interest;and

• b. The Claimant encashed the said cheque on 3 ^rd April 2009.

11 It is noteworthy to mention and reproduce the certificate of Truth to the Defence of the Defendants "I Nolma Chalwell, Secretary to the Public Service Commission, certify that I believe the facts stated in this Statement of Defence are true." Signed NOLMA CHALWELL, Secretary Public Service Commission dated 4 ^th October, 2010. The pith and substance of the Statement of Claim related to the proceedings conducted by PSC and the PSCs' subsequent determination and recommendation. The Defence mounted was in essence a Defence for and on behalf of the PSC in response to the allegations against that public body, and also on behalf of the Crown as employer.

12 Reply: Paragraph 2 of the Claimant's Reply filed on the 19 ^th day of October, 2010 continue to assert that she was wrongfully dismissed in 2008.In response to paragraph 3 and 4 of the Defence, the Claimant states that she was placed on interdiction at half of her month salary from 1 ^st March, 2007 with no formal explanation as to why this was being done. The Claimant avers that she received one letter dated 1 ^st March, 2007 informing her that she was placed on interdiction because disciplinary action was being instituted against her. (Such letter identified as N-C-2) However, the said letter did not set out the charges against her, nor any grounds for such disciplinary action, nor the date of any hearing nor did it inform her that she was allowed to bring witnesses on her behalf. The Claimant further alleges that she did not receive any letter dated 1 ^st March, 2007 containing such requests....