Leyoni Junos v Minister of Tourism & Transport

• Jurisdiction: Bermuda
• Judgment Date: 25 April 2009
• Date: 25 April 2009
• Docket Number: Civil Jurisdiction 2008 No. 259
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2008 No. 259

In the matter of an application for judicial review

In the matter of the Public Service (Delegation of Powers) Regulations 2001

And in the matter of the twice termination of employment of Leyoni Junos by the Minister of Tourism and Transport, first on 10 April 2008 and second on 22 May 2008, while the first termination was under appeal

BETWEEN:

LEYONI JUNOS

Applicant

and

THE MINISTER OF TOURISM & TRANSPORT

Respondent

Applicant in person

Mr G Howard for the Respondent

The following cases were referred to in the judgment:

Evans v Minister of EducationBDLR [2006] Bda LR 52

Dattatreya Panday v Judicial and Legal Service CommissionUNK [2008] UKPC 33

National Ballet of Canada v Kimberley Glasco and Canadian Actors' Equity Association [2000, unreported]

Rowland v Environment Agency [2003] EWCA 1885

Termination of employment without cause - Public and private law - Legitimate expectation - Fixed term contract - Temporary government employee - Whether temporary employees are public officers - Comparison with UK and Canadian public service - Construction of employment contract - Remedy of reinstatement - Termination by head of department instead of head of civil service

JUDGMENT of KAWALEY, J

Introductory

1. Pursuant to leave granted on October 20, 2008 without a hearing, the Applicant applied by Notice of Motion dated October 24, 2008 for an Order declaring that her employment had been unlawfully terminated and for an Order of Mandamus compelling the Respondent to reinstate her to her former position.

2. On October 23, 2008, the Applicant applied for an interim injunction restraining the Respondent from filling her position and for an interim order reinstating her to her former post. I adjourned this application to the inter partes hearing of her Notice of Motion. On October 30, 2008, I refused the Applicant's application for interim relief on the grounds that this Court had no common law or statutory jurisdiction to grant the relief sought in support of judicial review proceedings.

3. In the course of the hearing the Applicant complained that her termination was the result of improper political pressure brought to bear by the Minister of Tourism and Transport who is also presently the Premier. It is important to clarify at the outset that the Respondent is joined in these proceedings in an official and nominal capacity

because the Applicant was employed in that Ministry. This style of action is commonplace in judicial review proceedings. References in this Judgment to the Respondent should be read as referring in substance to the Ministry and/or Department of Tourism. Where reference is made to the Minister personally, he will be referred to as such.

4. Mr. Howard for the Respondent invited the Court to adjudicate both the private law and public law position with a view to avoiding a multiplicity of proceedings. Accordingly, the Court is required to determine the following key private law issues: (1) was the employer entitled to terminate the Applicant's employment on seven days notice without cause, and unilaterally elect to bypass any applicable disciplinary procedural regime? And, assuming the termination was unlawful: (2) was the Applicant entitled to be paid beyond the termination date of her fixed term contract which expired on May 22, 2008? And (3) was the Applicant entitled to an order of reinstatement at common law?

5. Irrespective of whether the contractual interpretation question were to be resolved in favour of the Respondent, public law issues would still arise and the Applicant's claim would not be liable to be dismissed. The following crucial public law issues fall to be considered: (1) what were the public law rules which were applicable to the Applicant's employment and did they arise under statutory or contractual provisions or a combination of both? (2) did the premature termination of the Applicant's employment comply with the applicable statutory rules? (3) if the termination was unlawful on jurisdictional or procedural unfairness terms, did the Applicant have a substantive legitimate expectation that she would be employed beyond the expiry of her fixed term contract and, if so, until what date? (4) if the Applicant is prima facie entitled to public law relief, should any potential relief be refused on discretionary grounds?

6. These questions are all complicated by the elaborate nature of the contractual documentation (which purports to incorporate into a three month contract the terms of the Public Service Commission Regulations, the Code of Conduct and the Collective Agreement between the Bermuda Government and the Bermuda Public Services Union ("BPSU")). The legal regimes purportedly incorporated by reference into the Applicant's contract are themselves not easy to digest, as regards the status of a temporary Government employee. Before attempting to answer the specific questions of law and fact upon which the present application turns, an attempt will be made to define for present purposes the wider legal framework within which the Applicant's employment contract was formed.

The constitutional status of public officers: are temporary Government employees 'public officers'?

7. Mr. Howard submitted that the definition of "public officer" in the Bermuda Constitution only embraced permanent holders of established offices. This submission must be rejected.

8. Section 82 (1) of the Bermuda Constitution provides as follows:

"Appointment etc., of public officers

82 (1) Subject to the provisions of this Constitution, power to make appointments to public offices, and to remove or exercise disciplinary control over persons holding or acting in such offices, is vested in the Governor acting in accordance with the recommendation of the Public Service Commission."[emphasis added]

9. Certain public offices, such as judicial offices, are appointed by the Governor without regard to the Public Service Commission (section 82(4)). In addition, the Constitution contemplates that the power to make and terminate appointments and to exercise disciplinary control over public officers under section 82 may be delegated to other public officers:

"Delegation of Governor's powers

83 (1) The Governor, acting in accordance with the recommendation of the Public Service Commission, may by regulations delegate, to such extent and subject to such conditions as may be specified in the regulations, the powers vested in him by section 82 of this Constitution (other than powers in relation to the offices referred to in subsections (2) and (4) (c) thereof to the Chairman of the Commission or to such public officers as may be so specified.

(2) Except in so far as regulations made under this section otherwise provide, any power delegated by such regulations may be exercised by any person to whom it is delegated without reference to the Public Service Commission."

10. Section 102 of the Constitution defines the following terms:

""public office" means, subject to the provisions of section 103 of this Constitution, an office of emolument in the public service;

"public officer" means the holder of any public office, and includes a person appointed to act in any public office;

"the public service" means the service of the Crown in a civil capacity in respect of the government of Bermuda"

11. Section 103 defines those offices which are not "public" offices for the purposes of the definition contained in section 102. These include members of the House of Assembly or Senate, Supreme Court and Court of Appeal judges, members of the public Service Commission and other boards and employees of any corporation established by Government for public purposes which is not directly controlled (general policy direction apart) by either the Governor or any Government Minister. Mr. Howard was right in contending that the concept of a public office under the Constitution is clearly intended to apply primarily to established offices and permanent occupants of such offices. This submission is also supported by the assertion in Wade & Forsyth's 'Administrative Law', that the "civil service comprises all the permanent and non-political offices and employments held under the Crown."1 However, the Constitution also explicitly applies to limited-term public appointees as well:

"105. (1) References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed."[emphasis added]

12. The marginal parameters of these constitutional provisions operation is, admittedly, less clear. It is clear, for instance, that someone appointed to act as a public officer ought for most purposes to be treated as a public officer. Section 104 expressly contemplates acting appointments. It is unclear, on the other hand, whether persons appointed to fill non-established temporary posts in the public service may be said to "the holder of a public office" within the meaning of section 102 of the Constitution. When the holder of a temporary office in the public service may be regarded as a public officer may in part depend on the particular circumstances of the individual case and, more significantly still, on an analysis of statutory enactments made under the Constitution to regulate the public service. The constitutional provisions relating to the appointment of and disciplinary control over public officers must also be read in their context having regard to their underlying legislative purpose. The Bermuda Constitution, like most written Commonwealth constitutions, seeks to replicate the

British structure...