Semper-caprietta v The Public Services Association of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Charles, J. |
| Judgment Date | 08 August 2012 |
| Neutral Citation | TT 2012 HC 286 |
| Docket Number | CV 3448 of 2011 |
| Court | High Court (Trinidad and Tobago) |
| Date | 08 August 2012 |
High Court
Charles, J.
CV 3448 of 2011
For the claimant: Mr. Farid Scoon.
For the defendant: Mr. R. Persad instructed by Mr. J. Heath.
Industrial law - Contract of service — Suspension — Power to appoint and remove — Power to suspend.
The defendant in this action is the Public Services Association of Trinidad and Tobago, a trade union representing public servants within this jurisdiction. The claimant is an elected officer of the defendant by reason of the National Election which was held on November 25th 2009 where she was elected as one of five (5) Industrial Relation Officers.
On 20th July 2010 at a Special Meeting of the defendant's General Council a resolution was passed authorizing the Executive Committee to fill vacancies created by the suspension of several of its officers for a period of three months or until disciplinary proceedings against the said officers were completed.
Accordingly, by letter dated 11th August 2010 signed by the President of the defendant Mr. Duke, the claimant was informed that she was appointed to act temporarily in the position of Deputy General Secretary from the 9th August 2010 “until the suspension of Mr. Rendy Bedaise is rectified and resolved by the General Council.”
The decision to so appoint the claimant was ratified by the General Council during its Ordinary Monthly Meeting held on August 19th 2010.
The claimant proceeded on vacation leave from April 18th 2011 until June 8th 2011. Upon her return to work she was not allowed to resume duties as Acting Deputy General Secretary; instead, one Mr. Desmond Cummings who had been appointed to act while the claimant was on vacation was allowed to remain in the said post.
She wrote several letters to the defendant's President complaining about her effective dismissal without any response from the letter. From that time to now she has not been reinstated to the position.
By letter dated 8th August 2011 (hereinafter referred to as ‘the said letter’), the claimant again wrote to Mr. Duke alleging irregularities in the conduct of the defendant's business which she complained were instigated and condoned by him. On 10th August 2011, by letter of even date, Mr. Duke demanded that the claimant provide him with a copy of the said letter by noon of the same day.
At 1:30 pm that said day another letter was sent to the claimant, signed by one Christopher Joefield who, purportedly acting with express authority of the President informed the claimant that she was suspended from the defendant with immediate effect for failing to deliver the said letter at 1:30 pm, the time of writing said notice. The claimant's failure to deliver the said letter was described by Mr. Joefield as “your blatant disregard and general defiance to the President's instructions”. He also advised the claimant therein that particulars would be supplied her within two weeks and that she would be “afforded a reasonable opportunity to defend herself.”
Upon receipt of Mr. Joefield's letter aforesaid, the claimant orally informed him that she intended to give a written response to the letters that she had received; however, in yet another letter to her on 10th August 2011 he indicated that he had conferred with the President on the matter and reported to him what her response was. He went on to indicate that “this response” is no longer required at the time. A demand was thereafter made for her to leave the defendant's premises immediately.
The President Mr. Duke also sent the claimant a letter on 10th August 2011 in which he referred to the earlier letter sent to her by Mr. Joefield advising of her suspension. He confirmed that she was suspended pursuant to Article 38(1) of the Constitution of the defendant.
The claimant wrote Mr. Duke by letter of 10th August 2011 advising him that the said letter had been hand delivered to his secretary on 8th August 2011; further that she had previously told him that she could not furnish him with a copy of same that day since it was in her house in Manzanilla. She also challenged what she referred to as his ‘illegal suspension’ of her.
Mr. Duke, on the same day (the 10th August 2011), dispatched a letter to the claimant's substantive place of work, the Ministry of Health, advising that with immediate effect the claimant was no longer in the defendant's employ and was therefore required to resume duties at her job in the Ministry. This action was communicated to the claimant by letter of 18th August 2011.
At a Special General Council Meeting held on 25th August 2011, a decision was taken to suspend the claimant as an Ordinary Member of the defendant.
By letter dated 6th September 2011 signed by Nixon Callender, General Secretary of the defendant, Particulars of the allegations which formed the basis of her suspension were outlined. It is to be noted that the claimant denied ever receiving said Particulars. She was advised that she should submit any written defence to the allegations contained therein within fifteen days from the date of the said letter.
She was also advised therein that the elected position which she held was declared vacant in accordance with Article 49 of the Constitution; there was also a revocation of any time off granted to her to conduct any business of the association. Lastly, she was advised by the terms of that letter to surrender to the General Secretary all books, papers, documents of the Association with immediate effect.
It is on the basis on these facts which I have summarized that the claimant then filed an action before this Court in which she sought the following reliefs:
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(i) Damages for wrongful dismissal from her position as Acting Deputy General Secretary.
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(ii) A Declaration that the revocation of her full time employment with the defendant and the direction that the claimant resume duties at her substantive post is unlawful and illegal and in excess of jurisdiction and ultra vires the Constitution of the defendant, null void and of no effect.
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(iii) A declaration that the suspension of the claimant by the President of the defendant whether acting by himself or by and under the authority of the Executive Committee of the defendant from her elected National Office with the defendant is illegal and unlawful and in breach of the defendant's Constitution and null and void and of no effect and in breach of the principles of Natural Justice and is wholly unreasonable, illogical and is an unjustifiable and arbitrary exercise of executive power in all the circumstances of the case.
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(iv) A declaration that the suspension of the claimant as an Ordinary Member of the defendant by virtue of a resolution of a Special Meeting of the General Council of the defendant held on August 25, 2011 and not yet formally communicated to the claimant, is unlawful and illegal and in excess of jurisdiction of the General Council and ultra vires the Constitution of the defendant and in breach of the rules of Natural Justice and presumably and expressly and in actuality biased and is null and void and of no effect.
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(v) An Order reinstating the claimant to her position as Acting Deputy General Secretary of the defendant with all entitlements and emoluments.
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(vi) An injunction restraining and prohibiting the defendant whether by its President and/or its General Council and/or its Executive Committee and/or any of its officers and/or servants and/or agents or howsoever from dismissing the claimant from her position as Acting Deputy General Secretary of the defendant or from her position as an elected National Executive Officer of the defendant.
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(vii) An Order prohibiting the claimant from being dismissed as an Ordinary Member of the defendant whether by its President and/or its General Council and/or its Executive Committee, save and except in accordance with the procedures with the procedures set out in Sections 82 of the Constitution of the defendant.
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(viii) Damages including aggravated damages for assault and battery.
The parties agreed that the facts are uncontested; there remaining only issues of law to be determined, they consented to the matter being decided on the basis of written submissions. Accordingly directions were given for the filing of written submissions by the claimant and defendant.
The claimant submitted firstly, that pursuant to Section 37(a) of the defendant's Constitution, as Industrial Elections Officer she is a National Officer. Further, that a Deputy General Secretary is also a National Officer and both parties are fulltime paid officers of the defendant. She submitted that they are all elected officers appointed under Section 99(i) of the said Constitution. Where a vacancy exists it can only be filled in accordance with Section 100 of the Constitution which provides that “where an office which is subject to election or appointment is made vacant, the Conference shall fill the vacancy or the General Council may in its discretion nominate a temporary holder of that office.”
The claimant went on to submit that the President has no function with regard to filling a vacancy for any National Office or even to an office within the defendant. Consequently, the defendant's argument that it was the President that appointed the claimant to her position is not sustainable.
It was contended by the claimant that the President's power of suspension is circumscribed by Section 38(b) of the defendant's Constitution which provides that the President may only suspend until the next General Council meeting. Additionally, the President may only suspend for failure to carry out his instructions or the instructions of the General Council. Counsel submitted that where the suspended...
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