Cato v Housing and Land Development Corporation
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Singh, J. |
| Judgment Date | 28 June 1988 |
| Neutral Citation | VC 1988 HC 7 |
| Court | High Court (Saint Vincent) |
| Docket Number | No. 201 of 1987 |
| Date | 28 June 1988 |
High Court
Singh, J.
No. 201 of 1987
Mr. Stanley K. John for the plaintiff.
Mr. S.E. Commissiong for the defendant.
Industrial law - Contract of service — Termination — Allegations of breach of duty and negligence made against the plaintiff held by court to have been proved — Wrongful plaintiff was wrongfully dismissed — Finding that the defendant acted in good faith.
On 1st October, 1976 the plaintiff herein was employed by the defendant herein (hereinafter referred to as the defendant or the corporation) as an executive officer. On 1st January, 1977 he was appointed assistant manager which post he held until 22nd May, 1983 when by letter dated 14th December, 1981, he was appointed to act general manager until further notice. By letter dated 29th May, 1983 the plaintiff was appointed general manager of the defendant corporation with effect from 23rd May, 1983 which post he held until 7 March, 1986 when the defendant, by letter dated 7th March, 1986, purported to summarily dismiss him from this position with immediate effect. These facts are not disputed and are more or less admitted in the pleadings.
The plaintiff alleges that this purported dismissal by the defendant of him from his position as general manager of the defendant corporation was wrongful and in the premises he has suffered loss and damage and has been unable to obtain employment elsewhere for several months and he claims from the defendant:
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(a) A declaration that his appointment has been unlawfully terminated by the defendant.
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(b) Alternatively, a declaration that the purported termination of his said appointment is null and void and of no effect.
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(c) An order for his reinstatement to the said position as general manager of the defendant corporation and payment of his salary for the period of unlawful interdiction, between 7th March, 1986 to the date of reinstatement,
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(d) Alternatively special damages for breach of contract of service in the sum of $30,204: being loss of salary for twelve months.
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(e) General Damages.
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(f) Further and other reliefs.
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(g) Costs.
The plaintiff's present position is that of a licensed auctioneer and general manger of Creole Services Ltd., a company carrying on the business of shipping agents, customs brokers and commission agents.
The pleadings in this matter do not dispute the fact that prior to the plaintiff being first employed with the defendant he was an employee in the public service of St. Vincent from 1962 and that his employment as General Manager of the defendant corporation was made under powers given to the Board of Directors of this corporation by s 12 of the Housing and Land Development Corporation Act, 1976.
The plaintiff pleads that it was expressly stipulated in his appointment that he as General Manager will be the chief executive officer of the defendant corporation and that as such he will be subject to the rules and regulations that govern public officers of his seniority in the public service, and also that he will be accorded similar rights and privileges with such officers and that his previous service as a public officer will be taken into consideration for the computation of his retirement benefits.
The Statement of Claim also alleges that it was also expressly provided for in the said appointment that the plaintiff will receive a salary in the scale of P 4 as outlined in the Estimates of Expenditure for the state of St. Vincent and the Grenadines being the sum of $30,204: per annum plus a travelling allowance which was paid to him in the sum of $550: and expressly or implicitly that he shall not be dismissed by the corporation unless and until proceedings for his dismissal similar to those set out under Part VI of the Public Service Commissions Regulations, 1969 (SRO No. 48 of 1969) were complied with by the defendant. Alternatively, it was an expressed or implied term that he shall not be dismissed unless and until the defendant corporation first disclosed to him the charges alleged against him and until the defendant corporation has heard his defence or explanations to the said charges. As a further alternative, the plaintiff pleads that it was an expressed or implied term of his condition of employment that he was entitled to reasonable notice to determine his employment, in the premises, twelve months notice.
The defendant in its defence alleges that the plaintiff, whilst an Executive or middle ranking officer in the public service of St. Vincent and the Grenadines was dismissed from that position for good and substantial reasons and as General Manager of the defendant Corporation was dismissed inter alia for:
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(1) Incompetence
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(2) Mismanagement of the corporation's property.
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(3) Failure to follow accepted accounting practices and procedures in regard to his management of the corporation's assets.
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(4) Failure to exercise effective control over his subordinate staff, and numerous other acts of indiscretion in relation to his dealings and disposal of the corporation's assets during his period of management.
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(5) Dishonesty.
and that he was informed and was fully aware of the reasons for his dismissal. In his reply the plaintiff denies that he was ever so informed despite requests by him of the defendant corporation for their reasons for his dismissal. He also denies the aforesaid allegations.
The defence admits that as General Manager the plaintiff functioned as the chief executive officer of the corporation but states toad: he could not be subject to the rules and regulations of the Public Service Act when there was no nexus between the defendant corporation and the public service and the said corporation lacked the requisite machinery and authority to confer such conditions of employment on the plaintiff. And, in so far as the defendant's directors purported to extend the term and conditions of employment of the public servant to the plaintiff that they acted in of authority and ultra vires their powers under the Housing & Land Development Corporation Act.
The defence also pleads that the defendant is protected by the Public Officers Protection Act No. 4 of 1981 and that the plaintiff has failed to comply with Ss 3 & 4 of the said Act and that this action is misconceived and is an abuse of process of the court. This aspect of the defence was not pursued.
The defendant in its counterclaim alleges negligence on part of the plaintiff in the performance of his duties as General Manager of the defendant corporation as a result of which defendant suffered substantial loss and damage totalling $36,079.01. Alternatively that the plaintiff acted in breach his statutory duty to secure and protect the defendant's assets and that he dealt with the corporation's goods in a manner inconsistent with ownership thereof. The defendant therefore counterclaims:
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(1) Damages for negligence
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(a) special damages $36,079.01
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(b) general damages
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(2) Alternatively, damages for breach of statutory duty
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(3) Alternatively, damages far conversion
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(4) An enquiry into the exact quantity of building material, which the plaintiff negligently and/or dishonestly disposed of without the consent of the defendant.
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(5) An order that the plaintiff compensates the defendant for any loss it has suffered as a result of the plaintiff's negligence and/or breach of statutory duty and/or conversion.
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(6) Costs
The plaintiff in his defence to this counterclaim denies that he is liable for the loss alleged or for any loss or damage whatsoever.
Several witnesses testified for both sides in this matter and from admissions in the pleadings and from those parts of the evidence of the plaintiff which remain uncontradicted, unchallenged and more or less admitted, I make these findings of facts which would reveal the history of the plaintiff's employment career up to the time he was dismissed by the corporation.
The plaintiff who is now 44 years old was a civil servant from 1962 to 1975 when by letter from the public service commission he was deemed by that authority to have resigned his position as a civil servant. His substantive position at the time of the termination of this appointment was that of executive officer who from 1973 acted in the post of a senior executive officer. On 1st October, 1976 he was appointed by the defendant as an executive officer and on 1st January, 1977 as the Assistant Manager. He acted as General Manager on several occasions until 1983 when he became the substantive holder of this post. He worked as General Manager until July, 1985 when he went on vacation to resume on or about 10th January, 1986. However, before he could have resumed and more precisely on 14th December, 1985 he was notified by the Chairman of the corporation that he was suspended On or about 17th December, 1985 he received a second letter from the corporation asking him to give explanations for what appeared to be certain irregularities that occurred in the business of the corporation during his tenure of officer as Manager. He responded to this letter and on 7th March, 1988 he received the letter of dismissal from the corporation. Before he was dismissed, and after he was asked to give the explanations referred to above, the plaintiff asked the corporation for time and opportunity to consult with his legal advisor and this opportunity was afforded him by the corporation. He then responded with explanations as to the irregularities after which he was dismissed. I find as a fact also from his own evidence that the plaintiff was given the option to appear in person before the corporation to explain the irregularities pointed out to him by the corporation but he chose not to exercise that option as he felt his written explanation was enough and he saw no further need to appear.
The plaintiff's letter...
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