Evans v Minister for Education

• Jurisdiction: Bermuda
• Judgment Date: 28 June 2006
• Date: 28 June 2006
• Docket Number: Civil Jurisdiction 2005 No. 280
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2005 No. 280

BETWEEN:

Leslie Evans

Applicant

and

The Minister for Education

Respondent

Mr P Harshaw for the Applicant

Mr M Douglas for the Respondent

The following cases were referred to in the judgment:

Re Kemper Reinsurance CompanyBDLR [1996] Bda LR 71

Barnard v Dock Labour BoardUNK [1954] 3 All ER 1113

Dolding v Public Service CommissionBDLR [2004] Bda LR 15

Carltona Ltd v Commissioner of WorksUNK [1943] 2 All ER 560

R v Secretary of State for the Home Department ex parte OlahindeELR [1991] 1 AC 254

R (on the application of the Chief Constable of the West Midlands Police) v Birmingham Justices [2002] EWHC 1087

Yadvinder Singh v Secretary of State for the Home Department [1988] Imm AR 480

Whitter v Director of Public ProsecutionsBDLR [2002] Bda LR 33

Calvin v Carr [1980] PC 574

Rowland v Environment Agency [2003] EWCA 1885

R v Secretary of State for Education and Employment, ex parte BegbieWLR [2000] 1 WLR 1115

Chief Constable for the North Wales Police v EvansUNK [1982] 3 All ER 141

Employment Act 2000

Public Service Commission Regulations 2001

Termination of employment contract — Non-Bermudian at the time of contract — Whether contract subject to collective bargaining agreement — Judicial review — Delay — Extension of time limits — Delegated authority — Legitimate expectation

JUDGMENT of Kawaley, J

Introductory

1. The Applicant is a special education teacher who taught in New York State between 1982 and 1990, and in Government aided or maintained schools in Bermuda between 1991 and 2004. She was appointed on limited term contracts in Bermuda throughout this period, because until May 7, 2004 when she acquired Bermudian Status, she was not a Bermudian.

2. In February 2004, she received an overall performance rating of ‘marginal’ from her Principal, who recommended to the Ministry that she be terminated. She was notified that her performance was under review on February 17, 2004. By letter dated March 12, 2004, the Chief Education officer acknowledged that a second appraisal carried out by an education officer had rated her overall performance as ‘effective/skilful’, and also advised her of her Principal's termination recommendation. This letter concluded:

‘I have decided that you should be removed from the on-review process provided that you complete courses selected in consultation with the education officer and demonstrate to the officer-prior to September 2004-that you are knowledgeable about all protocols associated with the development of IEPs1 and their implementation within the classroom. I will require the education officer to indicate to me that she is satisfied with your improvement in this basic knowledge. If she is not confident in your skills by that date then you will be placed back on review effective September 2004’.

3. On July 7, 2004, the Applicant and her Union representative met with officers of the Ministry and she complained of the impact of past and present review processes dating back to 2000 on her health. A further meeting was scheduled for August 12, 2004. Approximately 15 minutes before the August 12, 2004 meeting substantively started, the Applicant and her representative were handed a letter dated August 11, 2004 which in essence asked her to ‘show cause why [her] services should not be terminated’. After the meeting (characterised as a ‘hearing’ in the Ministry's minutes) at which the Applicant and her representative were given an opportunity to respond to the complaints about her performance, a further meeting was scheduled for August 26, 2004 which the Applicant declined to attend.

4. On August 30, 2004 the Chief Education Officer, ‘on behalf of the Permanent Secretary’, gave the Applicant written notification of termination of her services with effect from August 31, 2004. The stated ground of the termination was that ‘very little effort was made by you to abide by the requirements included in my letter of March 12, 2004’. The statement made in the March 12, 2004 letter to the effect that if there was no improvement she would be placed on further review in September ‘was premised upon your making a significant effort to improve your skills.’

5. Subsequent to this the Applicant pursued other remedies. On September 23, 2004, her attorneys complained to the Labour Relations office that the termination was unlawful by reason of the fact that it contravened the Employment Act 2000 ‘and the Ministry's own guidelines.’2. The Labour Relations Office responded on October 4, 2004 that jurisdiction under the 2000 Act was barred where a grievance procedure existed under a contract or collective agreement which a complainant had failed to obtain a settlement under. On May 17, 2005 the Applicant's attorneys reiterated their complaint to the Respondent. Receiving no response, they wrote again on June 2, 2005 to the Labour Relations Office.

6. On June 30, 2005 the Director of Labour and Training advised that the appropriate remedy was an appeal within 14 days to the Public Service Commission in respect of the relevant decision. As this time had expired, the Department had invited the Ministry of Education to consider allowing an appeal out of time. The Ministry referred the matter to the Secretary to the Public Service Commission on July 1, 2005. The Bermuda Union of Teachers disagreed with the Director of Labour's analysis and insisted that the Union's grievance procedure applied.

7. On September 6, 2005 the Applicant applied for leave to issue an Originating Summons under the Administration of Justice (Prerogative Writs) Act 1978. Leave was granted by Wade-Miller J on September 8, 2005.

The Applicant's complaints

8. By her Originating Summons, the Applicant sought, inter alia, (1) an order of certiorari quashing the purported termination of her employment and an order of mandamus compelling the Minister to refer the matter to the Public Service Commission; alternatively (2) a declaration that the Labour Relations Officer has received a request for arbitration and an order of mandamus compelling him to refer the dispute to arbitration, and (3) if necessary, an enlargement of time in which to bring the proceedings. Directions were ordered inter parties on September 29, 2005. No point on time was taken by the Crown, nor was any application to set aside the ex parte grant of leave made or anticipated based on material non-disclosure, alternative remedies or otherwise.

9. Pursuant to my directions, a Statement of Facts was filed by the Applicant on October 7, 2005 which alleged in addition to breaches of the Employment Act 2000 that the termination was contrary to the Collective Bargaining Agreement for Teachers and the Public Service Commission Regulations 1968. At trial, the Statement of Facts was amended to plead in the alternative the 2001 Public Service Commission, and to limit the relief sought to an order (a) quashing the purported termination of the Plaintiff's employment, (b) a declaration that the purported termination was void, and (c) damages.

10. No explicit plea as to the legal basis of the Applicant's employment was made. In her First Affidavit, she deposed without being contradicted that she became Bermudian on May 7, 2004 and the Ministry was aware of this fact. However, in argument, the Applicant's Counsel contended that her case had always been that since she obtained Bermudian Status, she was by common accord employed on an unlimited term basis. The need for specificity arose because on May 17, 2006, two days before the hearing of the Originating Summons, the Respondent filed an affidavit exhibiting, inter alia, a one year contract between the parties which expired on August 31, 2004.

11. The Statement of Facts did not condescend upon particulars in asserting why the purported termination was said to be void. The Respondent's evidence in answer responded primarily (if not exclusively) to the merits of the termination decision, as did the Applicant's evidence in reply. In part, the fairness of the proceedings resulting in the decision complained of was deposed to. The most that could be asserted on the main public law issue was in paragraph 102 of the First Christopher Affidavit, which merely stated as follows:

‘I do not accept that the purported termination of the Applicant was contrary to the provisions of General Orders or the Public Service Commission Regulations…as stated in paragraph 6 of the Statement of Facts.’

12. In the event, the crucial legal issues to be determined only emerged through oral argument at the substantive hearing of the Originating Summons, suggesting the need for more explicit pleadings to be given in judicial review cases in the future to ensure that the main public issues are clearly defined at an early stage of such applications.

Findings: scope of relief available by way of judicial review

13. Neither party addressed the Court on the extension of time prayer for relief set out in paragraph (3) of the Originating Summons. As the only relief now actively pursued, in respect of an August 30, 2004 decision, relates to a date one year and one week prior to the commencement of the proceedings on September 6, 2005, for the avoidance of doubt I deal with the time issue as it potentially goes to the jurisdiction to grant relief.

14. Applications for certiorari under section 10 of the Administration of Justice (Prerogative Writs) Act 1978 are subject to the following limitation rules:

‘(4) An application for an order of mandamus shall be made within two months of the day on which the refusal to act took place; an application for an order of certiorari shall be made within six months of the proceedings the subject of the complaint:

Provided that the Supreme Court may for special reason extend either of such periods.’

15. The Originating Summons sought a mandamus with respect to a continuing refusal of...