Doolam Rekha v Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Eleanor J. Donaldson-Honeywell
• Judgment Date: 10 January 2018
• Neutral Citation: TT 2018 HC 8
• Docket Number: Claim No. CV 2016-02462
• Court: High Court (Trinidad and Tobago)
• Date: 10 January 2018

IN THE HIGH COURT OF JUSTICE

SUB-REGISTRY, SAN FERNANDO

Before

Her Honour Madam Justice Eleanor J. Donaldson-Honeywell

Claim No. CV 2016-02462

Between

Doolam Rekha

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Appearances:

Mr. Anand Ramlogan SC, Mr. Kent Samlal, Ms. Jayanti Lutchmedial and Mr. Douglas Bayley Attorneys-at-Law for the Claimant.

Mr. Douglas Mendes SC, Mr. Michael Quamina, Mrs. Zelica Haynes Soo-Hon and Mrs Kamala Mohammed-Carter Attorneys-at-Law for the Defendant

Civil practice and procedure - Striking out of claim — Whether claim disclosed no reasonable grounds — Abuse of process.

Employment Law - Dismissal — Right to be heard before termination.

Judgement

I. Introduction

1 The Claimant is one of a number of former employees of the Strategic Services Agency [SSA] established in 1995 under the SSA Act Chap 15:06. Having been employed on contract in or around 2013 for a set number of years, he and some others were dismissed prior to the end of their term around early 2016. The Claimant filed a Claim seeking relief for his dismissal. This Ruling concerns two preliminary applications in relation to the Fixed Date Claim which was filed as a Constitutional Motion applying for Administrative Orders but including both public and private law claims.

2 Firstly, the Claimant applied pursuant to Part 56.9 of the Civil Proceedings Rules 1998 [CPR] for directions from the Court that either the private law and constitutional law aspects of the application be dealt with separately or that the whole matter be dealt with as a Claim.

3 Secondly, the Defendant has applied pursuant to CPR 26.2(1)(b) and (c) as well as 26.1(1)(k) to strike out the Claimant's fixed date claim form on the ground that it discloses no grounds for bringing the claim and/or is an abuse of the process of the Court. The main aspect of the Claim that the Defendant seeks to strike out as being without basis is that the dismissal was unconstitutional and in breach of contract because the Claimant was dismissed without cause, without being forewarned of any shortcomings and without an opportunity to be heard.

4 The Claimant says although his written contract did not provide for such processes this had to be implied as a term of his contract. The alleged implied term is set out in detail at paragraph 10 of the grounds upon which his claim is based. He argues that it was necessary to recognise such an implied term because of the unconstitutional failure of the Minister to prescribe regulations to guide disciplinary procedures against SSA employees even though he was empowered to issue such regulations under Section 14(b) of the SSA Act. The Claimant contends further that there was an issue of race bias that led to his dismissal. He claims violation of his constitutional rights to enjoyment of his property, namely his salary and benefits, as well as violation of his rights to fair hearing and protection of the law.

5 The Defendant contends that the Claim should be struck out on grounds fully explained in written submissions. The grounds are outlined as follows:

• a. The implied term pleaded at paragraph 10 of the “Grounds Upon Which The Claim For Relief Is Based” of the Fixed Date Claim Form filed on 20 ^th July 2016 does not form part of the Claimant's contract of employment;

• b. Even if the Claimant's contractual employment terms did include the alleged implied term, the Claimant has not been deprived of his right to sue for breach of that term. Accordingly, he has not been deprived of his property and his right to the protection of the law has not been infringed;

• c. Without more, a breach of contract by a public authority does not give rise to the breach of a constitutional right. There must be an additional element of constitutional breach and there is no evidence here of such an additional element;

• d. There is no evidence that the Claimant was dismissed because of his race;

• e. The power of the Minister to introduce regulations governing the disciplinary process of SSA employees is discretionary and not mandatory and there was no case made out in the Claimant's pleadings to support the Minister's duty to include the right to be heard in such regulations, if introduced.

• f. Alternatively, relief sought under Section 14 of the Constitution is a remedy of last resort. A constitutional motion is not the appropriate form to seek the reliefs sought by the Claimant as the Claimant had the alternative option of bringing an action for breach of contract and/or wrongful dismissal;

• g. Accordingly, to file the matter as a Constitutional Motion is an abuse of the process of the court.

6 While contending that the Claim in its current Constitutional Motion form must be struck out, the Defendant appears from its submissions not to object to the relief sought in the Claimant's Notice of Application. The Defendant says “ It is not in dispute that the Claimant has a remedy at common law for wrongful dismissal and the Defendant will not resist an application by the Claimant pursuant to CPR 56.9(2) (b) that the Originating Motion be dealt with as a claim.”

II. Issues

7 As it relates to the Claimant's Application, the Defendant has conceded that the Court has jurisdiction to give directions to deal with the matter as a Claim. Accordingly, all that remains to be decided on that application is whether, if the Constitutional Motion aspect of the Claim survives the striking out application, it should be dealt with separately or the entire matter as a Claim.

8 The issue to be considered in determining the Defendant's Application is whether the Claimant has established, in his Claim Form and Affidavits in Support, any ground for bringing the Claim. In particular what must be determined is whether the Claimant established any ground for contending the following:

• a. That he had a right to be heard before termination;

• b. That the failure of the Minister to make regulations violated his right to protection of the law;

• c. That the decision to terminate his employment was motivated by racial bias;

• d. That his right to property has been breached;

• e. That the breach of contract gave rise to a constitutional breach; and

• f. That the present action amounts to an abuse of process due to the existence of an alternative remedy in breach of contract and wrongful dismissal.

III. Background

9 The fixed date claim was brought pursuant to CPR Part 56.7(2) claiming constitutional relief as follows:

• a. A declaration that the Claimant's right to use and enjoy his property and not be deprived thereof except by due process of law under Section 4(a) of the Constitution of the Republic of Trinidad and Tobago was violated and breached;

• b. A declaration that the Claimant's right to the protection of the law in accordance with Section 4(b) of the Constitution of the Republic of Trinidad and Tobago has been violated and breached;

• c. A declaration that the Claimant's right to not be deprived of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations in accordance with Section 5(2)(e) of the Constitution of the Republic of Trinidad and Tobago has been violated and breached;

• d. A declaration that the Claimant's rights to not be deprived of the right to such procedural provisions as are necessary for the purpose of giving effect to the protection to the fundamental rights and freedoms in accordance with Section 5(2)(h) of the Constitution of the Republic of Trinidad and Tobago have been breached and violated;

• e. Damages including vindicatory damages.

10 Pursuant to CPR Part 56 Rule 9(1), the Claimant has also included in his Constitutional Motion the private law cause of action of breach of contract/wrongful dismissal as an alternative or in addition to the constitutional action. The private law claim seeks the following relief:

• a. A declaration that his termination/dismissal was unlawful and illegal with consequential damages for breach of contract and/or wrongful dismissal from his employment as Assistant Director of Administration from the Strategic Services Agency, including damages for loss of future employment prospects and consequential loss;

• b. Damages including aggravated and/or exemplary damages for the breach of contract and unlawful termination.

11 This dispute arose when the employment of the Claimant by the Defendant was terminated. The Claimant was employed as a Senior Field Officer of the SSA on 1 November, 2013 on contract for a period of three years. The Act governing the SSA includes two provisions allowing for the introduction of disciplinary and termination procedures. Firstly, at Section 5 (1) (c) and (d) the SSA is empowered as an agency to exercise disciplinary control, terminate and establish grievance procedures for employees. Secondly, at Section 14(b) “ the Minister may make Regulations generally to give effect to this Act and in particular regarding— (a) the exercise of the powers and the performance of the duties and functions of the Agency; and (b) the conduct and discipline of employees and the disciplinary procedures to be observed in the adjudication of grievances.” [Emphasis added]

12 The Claimant's contract included the following written terms:

• • Clause 11 provides for summary dismissal in cases of misconduct, inability to perform or disclosure of information concerning the SSA.

• • Clause 12 provides for termination of the contract in any other circumstance “by either party giving to the other one (1) months' notice in writing or on payment of one (1) months' salary in lieu of notice”

13 The Claimant's employment was terminated without notice by the Defendant 9 months prior to the expiry of that period on 11 February, 2016.

14 The reason for the Defendant's decision to terminate was expressed in a letter dated February...