Haughton v Govenor General and Ministry of Education
| Jurisdiction | Bahamas |
| Judge | Adderley, J. |
| Judgment Date | 04 November 2011 |
| Court | Supreme Court (Bahamas) |
| Docket Number | PUB/jrv/ 15 of 2010 |
| Date | 04 November 2011 |
Supreme Court
Adderley, J.
PUB/jrv/ 15 of 2010
Mr. Milton Evans, Ms Veronique Evans with him for the applicant
Mrs. Kayla Green-Smith, Mrs. Rhoda Bullard Stamp with her for the respondents
Employment Law - Contract of service or contract for services — Gratuity.
This is an application for judicial review of the decision made by the Minister of Education not to pay a gratuity upon the completion of a contract between the applicant and the Ministry of Education.
The applicant is claiming that he was employed by the government on a contract of service as a public officer and was not paid a gratuity of 15% of his total salary to which he was entitled upon completion of his contract. The respondents claim that he was engaged, not as a public officer, but instead as a consultant on a contract for services and as such he was not entitled to a gratuity. No issue was raised of whether this was a proper case for judicial review although Mr. Evans cited two cases in support thereof [ Council of Civil Service Unions and others v. Minister for the Civil Service [1984] 3 ALL ER 935; R v. Lord President of The Privy Council ex parte Page [1993] A C 682]. They were not challenged by the respondents.
By Originating Notice of Motion filed 19 July 2010 pursuant to leave of the Court granted 8 July 2010 the applicant seeks the following relief:
“1. Judicial Review in the form of an Order for Mandamus directing the Governor General to authorize the payment of the gratuity and accrued vacation pay.
2. A declaration that the respondents have acted unfairly and capriciously towards the applicant.
3. A declaration that having regard to s. 15 of the Public Service Act the applicant is entitled to be paid a gratuity notwithstanding that there was no term in his contract to that effect.
4. A Declaration that the applicant is entitled to damages for loss caused by the delay in being paid his gratuity and accrued vacation pay.
5. An order that all necessary and consequential directions be given.
6. Damages.
7. Costs.
8. Such further or other relief as this Court deems just”
His remuneration was $81,600.00 per annum; he was engaged for three years initially which was extended by 7 months. Added to the gratuity he is claiming interest lost by having to use his own funds to relocate back to Jamaica at the end of his contract and the interest lost on the gratuity itself that he could have earned since the completion. He completed his contract on 31 December 2009.
The facts are set forth in the Notice of Motion and supported by the affidavit of the applicant filed 21 May 2010 as follows:
1. The applicant was employed by the Ministry of Education as a Project Manager for the Support Programme for Transforming Education and Training (SPTET) by contract dated 1st June 2006 for three years and as such was a contract officer for the purposes of the Public Service Act.
2. The contract used was a standard form contract used by the International Development Bank and there was no provision in the Contract for the payment of a Gratuity.
3. It came to the applicant's attention that other persons working on the same project had provisions for payment of a gratuity and the applicant wrote a number of letters regarding his gratuity to Mr. Coleman Andrews, the Project Director for the SPTET.
4. The applicant was told that he was entitled to a gratuity because his salary exceeded the budgeted amount and it was asserted that he was made aware of this during the negotiations relating to his contract, an assertion that is categorically denied by the applicant.
5. The applicant remained in the employ of the Ministry of Education for a period of three years and seven months, the original contract having been extended by an extension agreement dated 20th July 2009.
6. The applicant's contract of employment ended on the 31st December 2009.
7. To date the applicant has never been paid his gratuity.
8. At no time did the applicant ever agree not to be paid a gratuity or waive his right thereto in any way.
9. The applicant was also due 37.5 vacation days at the end of his contract term.
10. The applicant has not been paid for these vacation days
An affidavit by Coleman Andrews, First Assistant Secretary in the Ministry of Education and Project Director for the SPTET Project claims the following additional facts and chronology of events which except for paragraph 10 were supported by documentary exhibits:
“10 “That on the 24th March, 2006 I along with Mr. Carl Oliver, Senior Economist at the Ministry of Finance interviewed the applicant. During the course of the interview the salary and all benefits relative to the project was negotiated. The applicant agreed to accept $81,600.00 annually for three (3) years with no gratuities built into the contract. Further, it was specifically pointed out to the applicant that the Ministry of Education could not make provision for a gratuity payment at the end of his contract because the agreed annual salary proposed for the post was $75,000.00 and the $81,600.00 which was being offered to him exceeded the proposed amount.
11. That on the 10 April, 2006 a presentation was made to the Tenders Board of the Ministry of Finance to consider the contracting of John Haughton as Project Manager for Phase One of the SPTET Project.
12. That on the 11 May, 2006 the Minister of Finance approved the award of a contract to the applicant.
13. On the 1st June 2006 a contract was entered into between the applicant and the Ministry of Education, for the applicant to undertake the position as Project Manager for the Bahamas Support programme for Transforming Education and Training Project
14. The applicant's contract ended on the 31 December, 2009.
15. Then in September, 2006 the applicant unilaterally altered the contract to include the addition of gratuity and submitted the same to the Accounts Section of the Ministry of Education. The altered...
To continue reading
Request your trial