Finn-hendrickson v Minister of Education
| Jurisdiction | Bermuda |
| Judge | Kawaley, J. |
| Judgment Date | 15 February 2008 |
| Court | Supreme Court (Bermuda) |
| Docket Number | 42 of 2007 |
| Date | 15 February 2008 |
Supreme Court
Kawaley, J.
42 of 2007
Mr. Paul Harshaw, Lynda Milligan-Whyte & Associates, for the applicant.
Mr. Martin Johnson, Attorney-General's Chambers, for the respondent.
Judicial Review - Procedural impropriety — Whether the legality of punishment imposed for absences from work without leave was a matter of public law — Lawfulness of disciplinary procedures — Certiorari.
The applicant in this case was employed by the Ministry of Education under a three year contract for the period September 1, 2006 to August 31, 2009 as a Reading Teacher reassigned to Cedarbridge Academy (“CBA”). The applicant is a public officer employed by the Permanent Secretary for Education under powers conferred on the Governor but delegated to the Permanent Secretary under section 83 of the Bermuda Constitution as read with paragraph 5 of the Schedule to the Public Service (Delegation of Powers) Regulations, 2001.
The present action is in substance against the Crown but the Minister of Education has been named as the defendant in compliance with the convention that civil servants are not personally named as defendants in proceedings against the Crown. Although some judicial review decisions seek to impugn decisions which are legally made by the Minister, this is not such a case. The appointment, removal and discipline of public officers such as the applicant is not a matter in which Government Ministers have any legal role to play, so the named respondent in the present action is merely a nominal respondent. This clarification seems justified because the applicant's pleaded case and her counsel's oral arguments made reference to decisions by “the Government” while nothing in the evidence suggests that the applicant's case was considered by anybody other than senior public servants.
It is also only fair to point out that the non-responsiveness of Ministry officials in the present case appears, on the evidence, not to reflect any systemic weaknesses on the Ministry's part. Correspondence from the applicant's attorneys during the same time-frame on behalf at least one other CBA teacher was promptly answered by the Permanent Secretary, who referred the matter to the Attorney-General's Chambers, apparently resolving the issue without the need for court proceedings.
The salient and largely undisputed facts are as follows. CBA received a report from a company known as MSI dated July 28, 2006 advising that samples taken had found evidence of mould “associated with potential health problems” and air quality issues would “not be eliminated overnight.” According to medical evidence produced by the applicant in these proceedings, she had been receiving treatment for allergy-related problems from her general practitioner since June 2005. On or about November 1, 2006, CBA was closed down as a result of health concerns surrounding the state of the building and students dispersed to various locations. The applicant was assigned to teach at the Berkeley Institute but complained, in a November 22, 2006 lawyer's letter which she later said erroneously referred to the Seventh Day Adventist Centre, that she felt sick there. Medical certificates were obtained by the applicant covering most of the remainder of the Christmas term, although it is unclear whether they were received by the Ministry. It seems more plausible that they were delivered to CBA but not forwarded to the Ministry because the school's normal administrative processes had been impaired by the closure. Be that as it may, it sensibly was conceded at the hearing that the applicant had good grounds for being absent until CBA reopened in January 2007.
On December 8, 2006, the applicant's lawyer (who had already communicated with the Ministry in respect of the health concerns of other CBA teachers) wrote the Ministry advising that the applicant would not return to work unless she received “satisfactory evidence that the levels of aspergillus mould that has made our client sick have been remedied.” On January 4, 2007, a chasing letter was sent by email to the Ministry (a) requesting a response to the December 8, 2006 letter, and (b) responding to a telephone call from CBA to the applicant on the previous day querying why the applicant had not returned to school.
In the meantime CBA and the Ministry had made significant progress in meeting what they considered to be the general health concerns. It seems obvious that closing down CBA and managing a dispersed student body at various locations was a Herculean task for all concerned. The Bermuda Union of Teachers (“BUT”) was involved in representing the health concerns of teachers at CBA as well, and by letter dated November 28, 2006 requested that the Ministry bring in an independent assessor to verify that the CBA working environment was a “healthy and safe” one. On or about December 21, 2006, the Minister made an announcement that CBA would reopen in early January 2007 because the Ministry of Health “has stated that Cedar Bridge Academy is fit to be reoccupied by its staff and students.” As requested by the BUT, international specialists had also supported the Health Ministry's findings. The written version of the Announcement stated that two forms of aspergillus mould had been found but the “vigorous clean up that has taken place has resulted in significantly reducing the levels of these moulds.”
Armed with this information, the Ministry must have regarded her lawyer's demand for confirmation of the safety of the site as absurd. If they had received no medical certificates for the period after November 22, 2006 when the applicant did not attend work, the behaviour of the applicant might well have seemed provocative. Indeed, since other teachers had made earlier complaints of falling ill due to poor air quality at CBA, she may have been regarded as an opportunist jumping on a bandwagon. But there is no evidence that the mould-related portions of the announcement, those of greatest relevance to the applicant's particular case, were ever reported in the medial [Reports from the Royal Gazette of January 4, 2007 are at pages 8–12 of Exhibit 3 to the Acting Chief Education Officer's October 23, 2007 Affidavit]. And it was reported that five female teacher clients of Mr. Paul Harshaw would not be returning because, according to their lawyer: “My clients are not willing to accept the mere public statement of the Government that the building is safe.”[ibid, page 9].
On January 9, 2007, the Ministry appears to have responded to the by then redundant November 22, 2006 letter about the temporary site, a letter the applicant's attorneys swore they never received. For reasons that were never explained, the Ministry never did respond to the December 6, 2006 or the January 4, 2007 letters indicating that the applicant would not return to work at CBA until satisfied it was safe. They did not require the applicant in writing (nor orally) to report for work at CBA or at an alternative location. Nor did they warn her in writing (or orally) that if she failed to attend disciplinary action would be taken against her.
On or about January 31, 2007, the applicant did not receive her pay. The December 8, 2006 and January 4, 2007 letters from her attorneys had met with deafening silence. On February 2, 2007, the applicant's attorneys again wrote to the Ministry (copying the Attorney-General's Chambers) stating in material part as follows:
“We refer to our letters to you of 8 December 2006 and 4 January 2007, neither of which have received any reply.
We are instructed that our client has not been paid for the month of January 2007. Unless our client receives her pay within 7 days of the date of this letter, she will have no option but to bring an action against the Government of Bermuda for unlawful termination. Our client can only assume that she has been terminated, as you have refused to communicate with us or our client in any way.”
On February 14, 2007, under cover of a letter to the court clearly not inspired by St. Valentine, the applicant's attorneys filed an application for leave to seek judicial review of “the apparent decision … to terminate the employment of' the applicant “and/or to suspend” her “without pay and without notice.” On March 28, 2007, Wade-Miller J granted leave to the applicant to pursue the present proceedings. There was by this date still, it seems, no response to the applicant's said lawyer's letters.
The respondent's initial tactical response to the proceedings was to seek to set aside the March 28, 2007 Order on the grounds that (a) the Minister had not made the decisions complained of, and (b) no relief by way of judicial review could properly be sought. The second of these two complaints had considerable merit. The Chief Justice felt that the case for judicial review, as opposed to an ordinary claim for damages, was not adequately pleaded. But he declined to set aside the ex parte Order granting leave to pursue the present proceedings. He directed instead, on October 4, 2007, that the grounds on which relief were sought should be amended to clarify what public law relief was being relied upon (in particular, expressly referring to the Occupational Safety and Health Act 1982 (“OSHA”)),
On May 21, 2007, the respondent filed two affidavits which asserted that the applicant had left her job of her own accord. These were supplemented by a third affidavit sworn on October 23, 2007. The main averments made in substantive response to the claim were as follows: (a) the applicant was not entitled to rely on OSHA as a ground for not returning to work [Chief Education Officer's Affidavit, paragraphs 24–28], (b) the applicant “was required to have made herself available for work by turning up at the office of the Ministry since the Ministry was her employer”...
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