the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

(Sub-registry, Tobago)

Claim No. CV 2016-01926

IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL

REVIEW OF THE DECISION OF THE ADMINISTRATOR OF THE DIVISION OF

EDUCATION YOUTH AFFAIRS AND SPORT OF THE TOBAGO HOUSE OF

ASSEMBLY TO TERMINATE THE SERVICES OF THE APPLICANT AND

TO FAIL TO RENEW THE APPLICANT’S CONTRACT FOR SERVICES

BETWEEN

HAYDEN WALDRON

Claimant

AND

THE ADMINISTRATOR OF THE DIVISION OF EDUCATION YOUTH AFFAIRS AND

SPORT OF THE TOBAGO HOUSE OF ASSEMBLY

Defendant

Before The Honourable Madam Justice Margaret Y Mohammed

Dated the 3rd March, 2017

APPEARANCES

Ms Shalini Sankar Attorney at Law for the Claimant.

Ms Akkianne Duke Attorney at Law for Defendant.

JUDGMENT

1. Hayden Waldron, the Claimant has brought an application for judicial review of the decision

of the Defendant, the Administrator of the Division of Education Youth Affairs and Sports

(DEYAS) of the Tobago House of Assembly, dated the 7th March 2016 to terminate his

services and for failing to renew his contract for services.

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2. The Claimant was employed as Project Management Assistant on a fixed term contract in

the Project Implementation Unit in the Tobago House of Assembly attached to DEYAS. He

was initially employed on a fixed term contract in 2006 but his contract was renewed

repeatedly and his most recent contract ended on the 9th March 2016. Some of the Claimant’s

duties included being involved in projects concerning the construction, maintenance and

carrying out of repairs to schools in Tobago. According to clause 9 of his contract he was

prohibited from directly or indirectly engaging in a trade, business or profession which

would conflict or compete with his duties and that he should fully devote his whole time and

attention whilst on duty to the services of the DEYAS.

3. During the Claimant’s last contract period, certain allegations came to the attention of the

Defendant namely that the Claimant was a Director of a company named D.O.J.O

Construction and Design (“DOJO”), he was instrumental in awarding a contract on behalf

of the DEYAS to DOJO for works carried out at Mason Hall Government School (“the

Mason Hall School”), he did not declare his interest and/or his involvement with DOJO and

he used his position to influence the award of this contract.

4. The Defendant formed the view that the said matters raised serious issues of conflict of

interest, given the Claimant’s position within DEYAS which could amount to breach of his

contract. The then Administrator of the Defendant Ms Dianne Baker-Henry wrote to the

Claimant on the 7th January 2016 (“the Administrator’s letter”) informing him of the

allegations of misconduct and giving him a time to respond to them. In the Administrator’s

letter the Claimant was informed that due to the seriousness of the allegations he was

suspended with immediate effect until the 3rd February 2016 and from the 4th February 2016

to the expiration of his contract on the 9th March 2016 he was told to proceed on vacation

leave. He was informed that the suspension did not imply any assumption that he was guilty

of misconduct but that it was necessary to preserve the integrity of any evidence relevant to

the allegations which would prove his innocence or truthfulness of the allegations. He was

advised that he would continue to receive his full salary; he was bound by the terms of the

contract; he will be required to cooperate fully with their investigations and be available to

answer work related queries. He was called upon to respond to the allegations by the 11th

January 2016. The full text of the Administrator’s letter is set out as:

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“Re: Allegations of Improper and Unprofessional Behavior

This correspondence serves to inform you that we have received allegations of gross

misconduct against you which warrants an investigation into same. In brief it is alleged that;

You are one of the Directors of a company called D.O.J.O Construction and Design whose

registered office is Gully Trace, Delaford;

The company was awarded a contract by the Division to carry out works at the Mason Hall

Government Primary School;

You did not declare your interest in the company according to proper procurement

procedure for public procurement;

You were aware of the actual and/or potential conflict of interest when the company was

awarded the contract;

You used your position in the Division to influence the awarding of this contract;

We also have in our possession a pre-action protocol letter dated 23rd September 2015 issued

to you on behalf of one Brendon Ollivierre, alleging a breach of contract between both of you.

(Please find attached for ease of reference). We have discovered that this is the said person

that would have executed documents on behalf of D.O.J.O Construction and Design as the

Contractor towards the said Mason Hall Primary School project.

These issues raise serious questions on unlawful procurement practices exercised by the

Project Implementation Unit and the role you played in this situation. You are therefore

required to formally respond to these allegations by 11th January 2016.

Given the seriousness of these allegations, you are suspended with immediate effect until 3rd

February 2016; thereafter you are expected to proceed on vacation leave from 4th February

2016 to the expiration of your contract on the 9th March 2016. This suspension does not imply

any assumption that you are guilty of any misconduct but us necessary to preserve the integrity

of any evidence relevant to these allegations, which would prove your innocence or

truthfulness of the allegations.

During your suspension, you will continue to receive your salary. You will also remain bound

by your terms and conditions of employment throughout your suspension. You are required to

cooperate with our investigations and be available to answer any work-related queries. You

are not otherwise required to carry out any of your duties and you should not attend the

workplace unless authorised by the Administrator to do so. Further you must not communicate

with any of Division’s employees unless authorised by the Administrator.

Any deviation from these directives without authorisation from the Administrator may be

construed as an effort to impede or interfere with the investigation.

If you have any queries, please do not hesitate to contact me.

You are required to sign the attached copy of this letter in acknowledgement of receipt of the

original letter.”

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5. The Claimant responded to the Administrator’s letter on the 14th January 2016 (“the

Claimant’s letter”) where he addressed the allegations made against him. In his response the

Claimant indicated that DOJO is a sole trader which was incorporated on the 11th October

2013. On the 8th September 2014 an attempt was made to admit him as a partner. He admitted

that DOJO was awarded a contract dated the 20th May 2015 by DEYAS to carry out certain

works at the Mason Hall School auditorium.

6. The Claimant denied the allegations in the third to fifth bullet points in the Administrator’s

letter. He stated that the works performed at the Mason Hall School were of an emergency

nature. Following complaints by the school’s principal he was instructed by the then

Administrator, Mr Rafael Mitchell to assess the condition of the auditorium. He conducted

a site visit on the 16th April 2016 where he determined that the then existing state of the

school’s auditorium posed an imminent threat to human life and safety. The Claimant also

stated that it was not the customary practice in DEYAS for the selection of a contractor for

works of an emergency nature to follow the traditional tender process. He was directed by

the Administrator of DEYAS to source a contractor immediately to secure the site and

undertake the required works. He contacted three contractors namely “On D Clock

Deliveries”, “D Fab Erect” and DOJO. At the time he had the contact information for the

said contractors; they were on a short list of contractors registered with DEYAS; he had a

good working relationship with them; he anticipated they would have the capability to

perform the job and they would be timely and reliable in completing the works. He was only

able to make contact with DOJO which he informed the Administrator. Although he was

given the mandate to carry out works he took the document to the Programme Coordinator

at which point he was relieved of further responsibility of procuring a contractor. The

contractor operating on behalf of DOJO engaged in separate negotiations with the Senior

Project Officers and Coordinator in obtaining the contract. He also attached a copy of his

report made to the Administrator.

7. In denying that he used his position in the DEYAS to influence the award of the contract to

DOJO, the Claimant stated that he merely relayed information about DOJO’s availability to

perform the job to the Administrator and he had no authority to issue any final approval. He

stated that DOJO would have had to independently satisfy criterial relating to its financial

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standing, human resources, capital and capacity concerning Bills of Quantities and

specification drawings.

8. According to the Claimant’s letter he did not foresee any actual and or potential conflict of

interest when DOJO was awarded the contract for the Mason Hall School due to the required

urgency for the works; the immediate threat of the principal and staff to shut down the school

which had just reopened on the 12th April 2015; his inability to contact the other two

contractors and he did not make the final decision in the award of the contract. It is for these

reasons the Claimant stated that any omission on his part to declare his affiliation to DOJO

was unintentional and not intended to be malicious. He said he did what he thought at the

time was best, given his instructions, and the emergency nature of the works. He also

indicated that he was not aware of the concerns that the work was not satisfactorily

performed and that despite various requests to the DEYAS for training related to public

procurement he had never undergone any such training nor was it made available to him.

9. The Claimant noted that he did not receive the pre-action letter dated 23rd September 2015

addressed to him from DOJO where certain allegations were made against him. He only

received it with when he received the Administrator’s letter since it was attached to it and

that he intended to seek legal advice on the allegations contained in the said letter. He ended

his response to the allegations by stating that he had complied with the directions of the

Administrator of DEYAS; he has been employed with DEYAS for ten years and he had

never been the subject of any prior disciplinary action and he hoped for the situation to be

resolved.

10. On the 7th March 2016 (“the March letter”) two days before the Claimant’s contract was due

to expire the Claimant was advised of the outcome of the investigation and that his contract

would not be renewed upon its expiration. The full text of the March letter is:

“Re: Outcome of Investigation

We acknowledge receipt of your response dated 14th January 2016.

As indicated in our letter dated 7th January 2016, the Division of Education, Youth Affairs and

Sport (hereinafter called “the Division”) carried out an investigation into your involvement

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with the company D.O.J.O Construction and Design (hereinafter called D.O.J.O) and the

contract awarded to same to carry out works at the Mason Hall Government Primary School.

A further investigation into the contracts awarded to the company D.O.J.O was also

undertaken.

It must first be clearly stated that the Division’s concern is with respect to the allegation of

your improper and unprofessional behaviour. The pre-action protocol addressed to you by Ms.

Ingrid Melville, Attorney at Law, was merely a copy which was enclosed in a legal

correspondence directed to the Administrator of the Division sent by the said Attorney. We

have never been in possession of any original document and in fact Ms. Melville indicated that

the said pre-action protocol letter was issued to you since in or about September 2015 on behalf

of her client, Mr. Brendon Ollivierre.

The Division’s investigation reveals that you are indeed a director in the company D.O.J.O. In

your response, you alluded to some uncertainty as to your status in the company when you

stated “…on 8th September 2014 an attempt was made to admit me as a partner to D.O.J.O”.

The circumstances in which the company D.O.J.O was awarded the contract is quite

superficial. After you deemed the situation at the school to be an emergency, you claimed that

you contacted three (3) contractors of which conveniently only your company D.O.J.O

responded. It is quite baffling that no further attempts were made by yourself to contact other

companies after the two companies failed to respond. Having been employed over a period of

time with the Division within the Project Unit, you would have been well aware of the other

companies that could have been considered to carry out the said works. Even if (which is not

accepted) that the situation was so urgent and your company was chosen, you made no attempts

to declare your interest in the company thereafter to the Administrator or to the Office in charge

of the Project Unit.

Within the report dated 16th May 2015 that you submitted to the Administrator, under the sub-

heading “Action taken” particularly paragraph 2, you clearly stated that the company

D.O.J.O. “…was given the mandate to proceed in doing the necessary work”. From that point,

you, acting on behalf of the Division, would have engaged and retained the services of the

company D.O.J.O. You were also responsible in providing D.O.J.O with further instructions

on the scope of works for the said project. Your claim that “…D.O.J.O would have had to

independently satisfy…” other criteria is artificial since you would have already made the

decision to give the mandate to the company to carry out the works. It was now a matter of

formalising this arrangement between the Division and the company D.O.J.O. Although the

Administrator ultimately approves the contractor, he would have relied on your guidance and

expertise as one of the technical employees employed in that Unit. The Division cannot

conclude otherwise than that your position in the Division influenced the awarding of this

contract to the company D.O.J.O.

Our investigation lead us to another contract awarded to the said company D.O.J.O in the sum

of Four Hundred Eighty Six Thousand, Nine Hundred and Forty Thousand Dollars

($486,940.00) to carry out repair works at Moriah Government Primary School. This project

was part of the School Repair Program in July/August 2015 of which you were a part of the

Project Team. Given your involvement in the School Repair Program, you were privy to

considerable confidential information about same. Proper procurement practices dictate that

given you involvement in the process, your company would have been prohibited from

tendering for the said project so as to avoid the issue of conflict of interest. Notwithstanding

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same, documents show that your company tendered for the said project. It was observed again,

that you failed to declare your interest in the said company when it tendered for project and

when it was subsequently awarded the contract.

This shows an unacceptable pattern of behaviour on your path. There appears to be an attempt

to conceal your interest in this company from the Division. In fact based on all the

documentation that was examined relating to the company D.O.J.O, not one suggested that

you were a named director in the company.

The Division expects its employees to observe a standard of conduct which will not discredit

on the abilities and integrity of its employees, or create suspicion with reference to its

employees’ capabilities in discharging their duties and responsibilities. The nature of your

misconduct demonstrates a deliberate disregard of the employer’s interests and standard of

behaviour which the employer has the right to expect to its employees. Further given the nature

of your actions, the Division believes it is sufficient to conclude that you have violated your

position of trust which is an asset treasured greatly by the Division. It is therefore on this

premise that the Division has decided to not engage you for further services.”

11. Notably in the March letter the Defendant indicated that it carried out an investigation into

the allegations made in the Administrator’s letter with respect to the works done at the Mason

Hall School and that a further investigation into contracts awarded to DOJO was also

undertaken. It also set out its findings and the reasons it decided not to engage the Claimant’s

services further.

12. The Claimant is of the view that the procedure used by the Defendant in arriving at its

decision was flawed for several reasons. He alleged that: he was not informed of the specific

allegations of misconduct against him; he was not given reasonable time to respond to the

allegations against him; he was not informed who were the investigators; he was deprived

of his right to be heard before any investigative panel; he was not informed of the reasons

for his dismissal; and there were new allegations of gross misconduct against him in the

March letter concerning works carried out by DOJO at the Moriah Government Primary

School to which he was not given the opportunity to address prior to the decision to

terminate and not renew his contract. The Claimant also asserted that he had a legitimate

expectation that his contract would have been renewed given his unblemished record.

13. For those reasons, the Claimant is seeking to have the decision of the 7th March 2016

quashed on the basis that it was unreasonable, irregular, an improper exercise of discretion

and not in accordance with the principles of natural justice since he was treated unfairly.

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The Claimant is also seeking an order that he be reinstated and that the decision not to grant

him a new contract be remitted to the Administrator for reconsideration. The Claimant filed

one affidavit in support of his claim on the 29th July 2016 (“the Claimant’s affidavit”).

14. The evidence in support of the Defendant’s position was from three persons who held the

position of Administrator. Umslopagaas Job’s affidavit filed on the 26th August 2016 stated

that he has been the Administrator for DEYAS since the 27th August 2016 to present.

Raphael Mitchell’s affidavit filed on the 16th September 2016 indicated that he was the

Administrator for the period 28th April 2014 to 9th June 2015 and the affidavit of Dianne

Baker-Henry (“the Dianne Baker-Henry affidavit”) also filed on the 16th September 2016

stated that she was the Administrator for the period 23rd June 2015 to 26th June 2016.

15. The Defendant’s position was that Claimant’s contract was not terminated but rather due to

effluxion of time it expired. The Defendant notified the Claimant in the March letter that it

was not going to renew his contract and the reasons for that decision was stated therein. The

Claimant was informed of the specific allegations against him and he was given an

opportunity to be heard which he used by sending the Claimant’s letter. For these reasons

the Defendant asserted that it acted fairly in not renewing the Claimant’s contract. The

Claimant did not have legitimate expectation of a renewal of the contract since there is no

policy in the THA for the automatic re-engagement of persons on a fixed contract.

16. The role of the Court in this matter is not to determine the substantive merits of the decision

made by the Defendant when it informed him that it was not renewing his contract. Rather,

it is to examine whether there was any illegality, irrationality or procedural impropriety by

the Defendant in arriving at its decision which it communicated to the Claimant in the March

letter.

17. The supervisory jurisdiction performed by the Court in judicial review proceedings was

adequately summarized by Lord Clyne in Reid v Secretary of State for Scotland1 as:

1 [1999] 2 AC 512, 541F-542A

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“Judicial review involves a challenge to the legal validity of the decision. It does

not allow the court of review to examine the evidence with a view to forming its

own view about the substantial merits of the case. It may be that the tribunal whose

decision is being challenged has done something which it had no lawful authority

to do. It may have abused or misused the authority which it had. It may have

departed from the procedures which either by statute or at common law as a matter

of fairness it ought to have observed. As regards the decision itself it may be found

to be perverse, or irrational, or grossly disproportionate to what was required. Or

the decision may be found to be erroneous in respect of a legal deficiency, as for

example, through the absence of evidence, or of sufficient evidence, to support it,

or through account being taken of irrelevant matter, or through a failure for any

reason to take account of a relevant matter, or through some misconstruction of the

terms of the statutory provision which the decision-maker is required to apply. But

while the evidence may have to be explored in order to see if the decision is vitiated

by such legal deficiencies it is perfectly clear that in a case of review, as distinct

from an ordinary appeal, the court may not set about forming its own preferred view

of the evidence” (Emphasis added)

18. In my opinion the two issues which would determine if the Claimant is entitled to any of the

relief sought are:

(a) Did the March letter terminate the Claimant’s services?

(b) Did the Defendant act fairly and observe the principles of natural justice in arriving at its

decision in the March letter?

Did the March letter terminate the Claimant’s services?

19. There was a dispute whether the Claimant was dismissed and his contract was terminated in

the March letter or whether his contract ended on the 9th March 2016 and the Defendant

notified him in the March letter that it was not going to renew his contract for the reasons

stated therein.

20. The Claimant has insisted that he was dismissed during his contract since he was dismissed

on the 7th March 2016 when his contract was subsisting. The Defendant has denied that the

Claimant was dismissed. According to the Dianne Baker-Henry affidavit the Claimant’s

relationship with the DEYAS was on a fixed term contract which would have come to an

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end due to effluxion of time on the 9th March 2016 and that he was paid his salary until the

9th March 2016.

21. In my opinion, the March letter did not terminate the Claimant’s contract. It came to an end

due to effluxion of time on the 9th March 2016. The Claimant was informed in the

Administrator’s letter that he was to be on vacation leave from the 4th February 2016 to the

expiration of his contract on the 9th March 2016 with full salary pending the investigation of

allegations of misconduct. The Claimant has not disputed that he was not paid his salary

until the end of his contract which was the 9th March 2016. During the period of suspension

he still remained bound by the terms of his contract. The March letter simply informed the

Claimant the outcome of the investigation of allegations of misconduct against him and the

reasons for the Defendant not renewing the contract.

Did the Defendant act fairly and observe the principles of natural justice in arriving

at its decision in the March letter?

22. Natural justice is the traditional name for legal standards of basic fairness protected by the

law. In Michael Fordham’s Judicial Review Handbook, at page 626, paragraph 60.2.3 the

learned author explained the meaning of fairness in the context of the principles of natural

justice and cited with approval the dicta of Mustill LJ in R v Secretary of State for the

Home Department ex p Doody2:-

“Fairness will very often require that a person who may be adversely affected by

the decision will have an opportunity to make representations on his own behalf

either before the decision is taken with a view to procuring a favourable result or

after it is taken, with a view to procuring its modification; or both.”3

23. It is also a fundamental principle of fairness at common law that a party should have access

to the evidence on which the case against him is based and an opportunity to comment on it

2 [1994] 1 AC 531 3 560D-G

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and if appropriate challenge it4. A party should also be aware who is investigating any

allegations against him, the specific details of the allegations and the reasons for the

outcome.

24. In Manning v Ramjohn5 Lord Browne observed that it is trite law that the requirement of

fairness in any given case depend crucially upon the particular circumstances6.

25. The challenge which the Defendant faced in the instant matter was that as a contract officer

there was no statutory guidelines such as the procedure detailed in the Public Service

Commission Regulation7 that deals with indiscipline and/or any allegations of misconduct

for the Administrator to apply to him and there was no procedure for dealing with allegations

of misconduct in the Claimant’s contract.

26. The Claimant asserted that he was not treated fairly when the Defendant arrived at its

decision not to renew his contract in four aspects. His first assertion was that he was not

informed of the specific allegations against him. According to paragraph 14 of his affidavit

filed on the 29th July 2016:

“I heard nothing of the matter until January 7th 2016 when I was sent a letter by the

new Administrator of the Division, Mrs Dianne Baker-Henry which contained

allegations of “gross misconduct” on my part, even though the rubric heading the

Letter said something else, so it was unclear which allegation was really being made

against me. The letter alleged that I was a Director in D.OJ.O which was awarded

the Mason Hall School Project. It also indicated that I failed to declare my interest

in the said Company although being aware of a potential conflict of interest and that

I used my influence in the Division to influence the awarding of the contract to

D.OJ.O. A true and correct copy of the letter is hereto annexed and produced as

“H.W.6”.”

27. Based on the January letter it appeared to me that the specific allegations against the

Claimant was that at the time the Division awarded a contract to DOJO to carry out the works

4 R v Secretary of State for Home Department ex p Q [2000]UK HRR 386, 391E 5 [2011] UKPC 20 6 See also Lord Mustill’s judgment in ex p Doody [1997] 1 AC 531 at 568D. 7 Chapter 1:01

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at Mason Hall Government School the Claimant was involved in DOJO. He was therefore

aware that based on his involvement in DOJO he had an actual or potential conflict of interest

which he did not declare and that he used his position in the Division to influence the

awarding of the contract to DOJO. He was also informed that the Defendant was in receipt

of a letter from Mr Brendon Ollivierre from DOJO who signed documents with respect to

the Mason Hall School works.

28. In my view the allegations made in the January letter were specific since they concerned an

alleged conflict of interest by the Claimant in DOJO with respect to the award of the Mason

Hall Government School contract by the Division and the Claimant understood the nature of

the allegations since in his letter dated 14th January 2016 he addressed the allegations. I

therefore do not agree with the Claimant’s submission that he was not told of the specific

allegations against him.

29. The second assertion by the Claimant was that he was given a very short time to respond to

the very serious allegations against him. According to paragraphs 15 and 16 of the

Claimant’s affidavit filed on the 29th July 2016 he stated:

“15. On the basis of the bare and vague allegations in the letter I was immediately

suspended from January 7th 2016 until February 3rd 2016. I was also mandated to

proceed on vacation from February 4th 2016 until the end of my contract on March 9th

2016. I was given a mere four days to answer the allegations of “gross misconduct”

and was compelled to give a response by January 11th 2016.

16. I was unable to respond comprehensively on the 11th and instead forwarded a letter

dated 14th January 2016 to the Administrator. In the letter I insisted that I was simply

a Project Management Assistant. I admitted that I failed to declare my interest but that

this was simply an oversight on my part. In any event the failure to declare my interest

was in no way malicious or intentional. Furthermore, I had no input, or control over

the eventual awarding of the Mason Hall School contract to D.OJ.O. When I visited

the school on the 13th April, 2015 and when a representative of D.OJ.O was called on

the scene, the only duty of the said representative was to temporarily block off the area

to prevent students and staff from venturing into danger. Thereafter I had no further

involvement with the Mason Hall School project. The contract awarded to D.OJ.O was

entered into after my involvement with the project and the works completed by D.OJ.O

on the 13th of April, 2015 were of an emergency and temporary nature and did not form

part of the Contract subsequently entered into by D.OJ.O and the Division. A true and

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correct copy of the letter forwarded to the Division by me is hereto annexed and

produced as “H.W.7”.

30. There was no statutory or contractual underpinning a fair time to respond .In any event, based

on the Claimant’s own evidence, he requested and was given an extension to respond to the

allegations which he did in his letter dated 14th January 2016. In this regard, while initially

the Claimant was given a short time to respond, his request for an extension to respond was

granted albeit for a shorter period than requested and from the March letter it was clear that

the representation made by the Claimant’s letter were considered before the Defendant

arrived at its decision. Therefore I do not agree with the Claimant that he was not given an

opportunity to respond to the allegations in the January letter. In my opinion the Claimant

was given an opportunity to respond to the allegations against him which he did in great

detail.

31. Thirdly the Claimant asserted that he was not treated fairly since he was not informed of the

person who was appointed to investigate the allegations against him and that he was never

invited or given a chance to participate in any disciplinary hearing. At paragraph of the 17

of the Claimant’s affidavit he stated that after he submitted his response to the allegations

against him he did not hear of any investigation which was being carried out. He was never

informed of the person/ persons carrying out the investigation. He was never called to answer

allegations and he was not given a genuine opportunity to be heard. He was never invited

nor given a chance to participate in any disciplinary hearing.

32. The Defendant contended that the relationship between the Claimant and Defendant under

his contract was one of master and servant and that his complaint of an entitlement to a

disciplinary hearing or a tribunal was incorrect since under the common law he was not

entitled to a hearing at all. In support of this position the Defendant relied on the author Paul

Jackson who stated in his work “Natural Justice”: “whatever the uncertainty of the

applicability of natural justice in some areas, the law regarding master and servant is not

in doubt. Ridge v Baldwin A.C.40 at pg 65 per Lord Reid. At common law the servant can

“in the ordinary course of things” be validly dismissed at any time without a hearing”.

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33. The Claimant was an officer employed on contract therefore he was not entitled to a

disciplinary hearing or appearance before a tribunal as outlined in the Public Commission

Regulations which deals with indiscipline and/or any allegations of misconduct. Further

there was no provision in his contract which set out a procedure for a disciplinary procedure

which required a setting up of a tribunal to hear and determine allegations of misconduct.

34. Fourthly, the Claimant asserted that he was not given an opportunity to respond to new

allegations of gross misconduct raised against him in relation to a contract awarded to DOJO

to carry out works at Moriah Government Primary School, which he first became aware of

in the March letter. The Claimant contended that based on the March letter the Administrator

took in account the new allegation which he did not have the opportunity to respond to before

she arrived at her decision not to renew his contract and therefore her decision formed an

erroneous conclusion.

35. The Defendant has not denied that in the March letter additional matters were included as

reasons for the non-renewal of the Claimant’s contract. The Defendant’s position is that

justification of dismissal can be shown based on proof of facts ascertained subsequent to the

dismissal or on different grounds alleged at the time. However this position adopted by the

Defendant appears to be inconsistent with its original contention which is that the Claimant

was not dismissed but rather the Defendant took a decision not to renew his contract based

on the reasons set out in the March letter.

36. According to paragraphs 13 to 17 of the Dianne Baker-Henry affidavit the following

matters were considered by her before arriving at her decision not to renew the Claimant’s

contract:

“13. In response to paragraph 16, I read the Claimant’s response and found that there was a

lot of discrepancies with same. The Claimant’s position in the Project Implementation

Unit (hereinafter called “PIU”) within the Division exposed him to most if not all the

operations of same. The Claimant would have been fully aware of the procurement

practices of the Division which include but not limited to the declaration of interest of

an employee who has a company and is registered with the Division, prohibition of a

company to tender if there is any association with an employee who is directly involved

in the procurement process (i.e. In house costing, tender and evaluation).

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14. The Claimant’s assertion that his failure to declare his interest in the company was an

oversight, appears quite insincere. Based on documents found within the Division, the

company D.O.J.O Construction and Design (hereinafter called “D.OJ.O”) has been

receiving contract as early as 2014 around the said time the Claimant gained an interest

in same. The Claimant has always been involved in the project “School Repair

Programme” which takes place around July August every year. The Claimant would be

very knowledgeable about the in-house costing and evaluation criteria among other

things related this project.

15. The company D.OJ.O was awarded a contract dated 17th July 2014 to carry out works

at the L’Anse Fourmi Methodist Primary School for the sum Four Hundred and

Twenty Six Thousand Dollars ($426,000.00). The Company D.OJ.O also received

payments in the sum of Two Hundred and seventy Nine Thousand Dollars

($279,000.00) for additional works on the same project. Both documents are annexed

hereto and marked “DBH 2” respectively. What is peculiar about this transaction is that

although the Claimant was not a named Partner in the company until 8th September

2014, the decision to admit him as Partner took place immediately before payments were

released to the Company which was the 3rd December 2014 and 23rd December 2014.

Copies of the documents evidencing the said dates are annexed hereto and marked

“DBH 3”.

16. After being admitted as a Partner to the company D.OJ.O, the Claimant made no attempt

to notify the Division of his interest in same. The Company D.OJ.O. was able to obtain

two further contracts from the Division in 2015, one of which is the Mason Hall

Government Primary School contract and the other is a contract dated 13th August 2015

to carry out works at the Moriah Government Primary school for the sum of Four

Hundred and Eighty Six Thousand Nine Hundred and Forty Dollars ($486,940.00)

which is annexed hereto and marked “DBH 4”. There was still no effort on those

occasions that the Claimant declared his interest. It should also be noted that based on

all the documents found that was related to the company D.OJ.O, none bore the names

of any of the registered proprietors that is Ms. Denise Dalrymple Jack and the

Claimant’s name. A copy of the registration documents is annexed hereto and marked

“DBH 5”. It is therefore quite difficult not to infer that the Claimant’s failure to declare

his interest was not deliberate and intentional.

17. In response to paragraph 17, an investigation was conducted by two senior Accounting

officials of the Division. The Claimant was given an opportunity to be heard through his

letter dated 14th January 2016 and exhibited as “H.W.7” in his Affidavit. The Claimant

is not a public servant within the meaning established under the Public Service

Commission Regulation Chap 1:01 and therefore any allegations of misconduct and/or

indiscipline cannot be dealt with under Chapter VIII of the Public Service Commission

Regulation i.e. appointment of a tribunal etc. I would have exercised all the options

available to me in ensuring that the principles of natural justice were observed. The

mutual trust and confidence between the Claimant and the Division had eroded. Further

it is denied that6 the Claimant was dismissed. The Claimant’s relationship with the

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Division under his fixed term contract would have come to an end with effluxion of time

on the 9th March 2016. The Claimant was informed that he would not be re-engaged.

Re-engagement can only take place upon the expiration of his previous contract. The

Claimant was paid up to the last day of his contract which is 9th March 2016.”

37. In the March letter the reasons advanced for not renewing the Claimant’s contract were the

finding that the Claimant did not act properly with respect to the contract for the Mason Hall

School. The Defendant also considered another contract awarded to DOJO for repairs to the

Moriah Government School.

38. The Dianne Baker-Henry affidavit did not reveal the information discovered by the two

senior accounting officials. However, according to the Dianne Baker-Henry affidavit in

arriving at the decision not to renew the Claimant’s contract the Administrator considered

additional matters which the Claimant did not have an opportunity to respond to namely:

(a) a contract to DOJO dated 17th July 2014 for works at the L’Anse Fourmi Methodist

Primary School. The Administrator arrived at a conclusion that although the Claimant

was a not a named partner in DOJO at the time the decision to admit him as a partner

was immediately payments were released to DOJO in December 2014 ;

(b) a contract to DOJO for works at the Moriah Government School dated 13th August 2015.

The Administrator stated that in none of the documents at the DEYAS contained the

names of the Claimant and the registered proprietor, Ms Denise Dalrymple Jack.

39. In my opinion, the Defendant clearly had widened the scope of the investigation from the

allegations which were set out in the Administrator’s letter, without informing the Claimant

and without giving him an opportunity to respond.

40. Therefore, in arriving at the decision not to renew the Claimant’s contract the Administrator

considered matters which the Claimant had no opportunity to defend and as such she arrived

at erroneous conclusions such as: “the decision to admit him (the Claimant) as a Partner took

place immediately before payments were released to the Company which was 3rd December

2014 and 23rd December 2014.” There was no evidence before the Administrator to know

the mind of the existing partner Denise Dalrymple-Jack of DOJO to conclude when she took

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the decision to admit the Claimant as a partner. If the Defendant did in fact take statements

or submissions from Denise Dalrymple Jack without bringing same to the attention of the

Claimant or giving him an opportunity to respond thereto, then this demonstrated that the

procedure adopted by the Defendant was unfair and in breach of natural justice.

41. The Administrator’s conclusion that the Claimant’s failure to declare his interest was

deliberate and intentional since the documents which were at the DEYAS did not have the

names of Denise Dalrymple Jack and the Claimant is also an erroneous conclusion since the

documents were not brought to the attention of the Claimant for him to respond to.

42. For the aforesaid reasons I have concluded that the Defendant acted and illegally,

irrationally in arriving at the decision not to renew the Claimant’s contract.

CONCLUSION

43. I have concluded that the Defendant breached the principles of natural justice and procedural

fairness for the following reasons. While the Defendant notified the Claimant of the specific

allegations against him, it failed to give him the opportunity to address any evidence which

it received and considered which was adverse to him before it arrived at its conclusions.

Further, in the reasons provided to the Claimant in the March letter it was clear that the

Defendant considered material which was outside of the scope of the allegations in the

Administrator’s letter which the Claimant was not given an opportunity to respond to and

the Administrator made findings without giving the Claimant the opportunity to be heard on

it.

44. In deciding the relief to be granted I considered the learning in Credit Suisse v Allerdale

Borough Council8 where it was stated that: “The discretion of the court in deciding whether

to grant any remedy is a wide one. It can take into account many considerations, including

the needs of good administration, delay, the effect on third parties and the utility of granting

the relevant remedy”.

8 [1997] QB 306, 355D

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45. In my opinion in order to vindicate the complaint by the Claimant it is necessary to grant the

declaratory relief and to quash the decision of the Defendant dated the 7th March 2016 not

to renew the Claimant’s contract. I declare that the decision is illegal and is quashed. I will

direct that the Administrator reconsider the decision to renew the Claimant’s contract after

the Claimant is provided with the material which the Administrator considered before

arriving at her decision. I will also direct that the Claimant is to be given an opportunity to

respond to the said material and the new allegations referred to in the March letter namely

the contract to DOJO from DEYAS dated the 13th August 2013 concerning the works for the

Moriah Government School and the documents relating to the DOJO contract dated 17th July

2014 for works at the L’Anse Fourmi Methodist Primary School which was referred to in

the Dianne Baker Henry affidavit. In my opinion, the Claimant is to be provided with the

aforesaid information within 21 days of this order and he is to be given 21 days thereafter to

respond to the new allegations and material. After those deadlines, it is for the Administrator

to determine whether the Claimant’s contract should be renewed.

46. Damages are also at the Courts discretion. In the Claimant’s closing submission it was

argued that the Claimant should be awarded damages for the Defendant’s breach of natural

justice. In support of that submissions the Claimant relied on the authority of Rees v Crane9

and Section 8(4) of the JRA Act which gives the court the discretion to award damages if

the applicant included a claim for damages in the application for judicial review and if the

Court is satisfied that the claim made in the action had been made out

47. In my opinion the Claimant’s argument in this regard has no merit since the Claimant did

not include any claim for damages in the instant action and he has not pleaded to any degree

his loss. While I am satisfied that the Claimant has succeeded in proving that the Defendant

did not observe the principles of natural justice in making its decision not to renew his

contract, in my opinion the more appropriate recourse is to remit the matter for the

Administrator’s consideration. Having regard to remitting of the decision of whether the

Claimant’s contract for services is to be renewed the final decision is still to be made.

9 [1994] 2 AC 73

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ORDER

48. It is declared that the Administrator’s decision dated the 7th March 2016 was not in

accordance with the principles of natural justice and that the Claimant was not treated fairly

pursuant to section 20 of the JRA Act.

49. The decision of the Administrator dated the 7th March 2016 not to renew the Claimant’s

contract is quashed.

50. The matter is remitted to the Administrator to reconsider the renewal of the Claimant’s

contract for services with the DEYAS.

51. The Defendant to pay the Claimant’s costs to be assessed in default of agreement.

…………………………….

Margaret Y Mohammed

Judge

the republic of trinidad and tobago in the high court...

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