Garth Mc Lean v The National Lotteries Control Board
| Jurisdiction | Trinidad & Tobago |
| Judge | David C Harris |
| Judgment Date | 11 March 2020 |
| Neutral Citation | TT 2020 HC 87 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | CV2016-03761 |
| Date | 11 March 2020 |
IN THE HIGH COURT OF JUSTICE
The Honorable Justice David C Harris
CV2016-03761
Mr. Gideon Mc Master instructed by Mr. Joel Roper for the Claimants.
Ms. Raisa Caesar instructed by Ms. Manisha Lutchman for the Defendant.
The Claimants bring this action for wrongful dismissal and breach of contract after the Defendant determined that their employment contracts were invalid, unenforceable and unratified and the Defendant subsequently summarily terminated the said employment contracts.
The First Claimant pleads that on or around 6 th July 2015 he was offered and accepted a 2-year contract of employment with the Defendant, by a Director of the Defendant, at the Defendant's offices, to provide Information Technology Management Services. He further pleads that the said contract was signed by himself, the Secretary to the Board of the Defendant, Ms John and witnessed by an employee of the Defendant, at the premises of the Defendant.
The Second Claimant pleads that on or around 29 th July 2015 she was offered by a Director of the Defendant Ms Forde, and accepted, the 2-year contract of employment, at the Defendant's offices, to perform the duties of Financial Controller within the Defendant. She further states that the said contract was signed by herself, the Secretary to the Board of the Defendant and witnessed by an employee of the Defendant at the Defendant's premises.
The Claimants contend that on or round 5 th October 2016 the Chairman of the Defendant notified the Claimants, via individual letters, of the decision to terminate their contracts. They further contend that the letters stated, inter alia, that the respective contracts had not been approved nor ratified by the Board and that the power to enter into the said contracts was not delegated expressly or by implication to the Secretary to the Board.
The Claimants contend that they were summarily relieved of their duties, without cause, by the Defendant nine months in advance of the contractual duration of 2 years, without prior notice that the issue of revocation or termination of their contracts was under consideration. Further, they contend, the reasons for termination as put forward by the Defendant, were not matters within the knowledge or control of the Claimants when the Defendant issued the contracts. Indeed they were not matters provided for in the said contract itself.
The Claimants plead that under their respective contracts, they were each entitled to three months' notice of termination and that such notice was not afforded to them by the Defendant, neither were they paid fully in lieu of such notice as required by the contract.
The Defendant contends that at no time did the Board delegate the power to enter into the said contracts to the Secretary or the Director or any other person on behalf of the Defendant. Further, the Defendant contends that the purported contracts held by the Claimants were not approved by the Defendant, nor were they ratified by the Defendant and were not executed pursuant to the statutory formalities and are therefore invalid and unenforceable.
The Defendant pleads that an investigation was initiated by the Board into the validity of the contracts held by certain service providers and that prior to this, the Defendant did not realise that the Claimants' contracts were invalid.
Throughout the pleadings, the Defendant contends that the contracts were invalid and unenforceable, having not been approved by the Board or ratified and were executed outside of the statutory formalities. As such, the Defendant contends, the Claimants were not summarily dismissed as they were not validly employed with the Defendant at any time. Their employment not being legitimate, the Defendant contends, the Claimants could not be afforded a hearing before the Board made its decision that the Claimants' contracts were unenforceable and that they (the Claimants) should be terminated; neither could they be allowed access to the Defendant's offices, nor be afforded any prior notice of termination.
The Defendants contend that no legitimate expectation was created by the Defendant, neither can the Claimants rely on any entitlements under their respective contracts, said contracts being deemed by the Defendant as invalid, unenforceable and executed outside of the statutory formalities.
(i) Whether the proceedings of the First and Second Claimant were properly brought together in one claim;
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(ii) Whether employment contracts are required to be executed by the Board in accordance with s. 12(1) of the National Lotteries Act Chap. 21:04;
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(iii) Whether the ostensible authority of persons to execute contracts overrides statutory requirements.
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(iv) Whether the claimants were unlawfully dismissed and are entitled to relief.
The CPR at Part 26.1(1)(i) gives the court the power to “try two or more cases on the same occasion.” 3
The National Lotteries Act (“the Act”) s. 12(1) states:
“Any document requiring to be executed by the Board shall be deemed to be duly executed—
(a) if signed by the Chairman and the Secretary; or
(b) if signed, whether within or without Trinidad and Tobago, by a person or persons authorised by resolution of the Board so to sign; but such an extract of the resolution certified by the Chairman and the Secretary shall be attached to and form part of the document.”
“This doctrine of ‘holding out’ also known as apparent or ostensible authority is based on estoppel……..arises where one person has acted so as to lead another to believe that he has authorised a third person to act on his behalf, and that other in such belief enters into transactions with the third person within the scope of such ostensible authority. In this case the first-mentioned person is estopped from denying the fact of the third person's agency under the general law of estoppel, and it is immaterial whether the ostensible agent had no authority whatever in fact,
or merely acted in excess of his authority……….The onus lies upon the person dealing with the agent to prove either real or ostensible authority and it is a matter of fact in each case whether ostensible authority existed for the particular act for which it is sought to make the principal liable. No representation made solely by the agent as to the extent of his authority can amount to a holding out by the principal.” 4 [Emphasis added]In Treitel, The Law Of Contract, 11 th Edit; the authors posit that the law may refuse to give full effect to a contract on the ground of illegality, i.e. because the contract involves the commission of a legal wrong or is in some other way contrary to public policy. The problems with classification of the cases in which contracts are affected by illegality is noted in those works.
It is perhaps best set out for our circumstances in the instant case, in the broadest of ways, in the case of Soteriou (Claimant) v Ultrachem and others (Defendants) [2004] EWHC pp 983 (QB), as being two types of cases where illegality renders a contract unenforceable: (i) a contract entered into with intention of committing an illegal act; (ii) where the contract is expressly or implicitly inhibited by statute. It is the later that the Defendants in the instant case contend is applicable to the Claimants' contract and dismissal by virtue of section 12 of the Act.
A contract may generally be illegal because it is contrary to a statute or is an immoral contract. A contract which is illegal in its purpose, is void regardless of the state of mind of the parties: Halsbury's Laws of England/Employment Vol. 39 (2014) at para. 18.
In Johnson v Unisys Ltd. 5 at para. 40 Lord Hoffman quoted Lord Reid in Malloch v Aberdeen Corporation 6. Lord Reid said:
“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant
has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract.”Lord Hoffman concluded at para. 41:
“The action for wrongful dismissal could therefore yield no more than the salary which should have been paid during the contractual period of notice.
Halsbury's Laws of England/Employment Vol. 41 (2014) at para. 825:
“A wrongful dismissal is a dismissal in breach of the relevant provision in the contract of employment relating to the expiration of the term for which the employee is engaged. To entitle the employee to sue for damages, two conditions must normally be fulfilled, namely:
(1) the employee must have been engaged for a fixed period, or for a period terminable by notice, and dismissed either before the expiration of that fixed period or without the requisite notice, as the case may be; and
(2) his dismissal must have been without sufficient cause to permit his employer to dismiss him summarily.
It is further stated in this paragraph that “….in order to found a claim for wrongful dismissal an employee has to show that he was employed under a contract of employment that was enforceable”: Soteriou v Ultrachem Ltd [2004] EWHC 983 (QB) where contract found to be tainted with illegality; finding of illegality necessarily defeated the claim.
Halsbury's Laws of England/Employment Vol. 41(2014) at para. 830:
In the case of a fixed-term contract, this means that the starting point is the remuneration for the remainder of the fixed term; but...
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