Chief Justice rules M&CC’s move to sack City Engineer unlawful
-grants order preventing disciplinary action without LGC approval
Acting Chief Justice Roxane George-Wiltshire SC has ruled that the Mayor and City Council’s (M&CC) planned termination of City Engineer Colvern Venture’s employment would be unlawful as the Council has no legal authority to make such a decision.
In a ruling on Thursday, the Chief Justice declared that the Respondents— the Town Clerk and M&CC—“cannot be allowed to act unlawfully, no matter how factually justified they may consider themselves to be.”
Justice George-Wiltshire further held that it is the Local Government Commission (LGC) that is vested with the powers of disciplinary control and that the Local Government Commission Act is meant to protect employees—to safeguard the disciplinary issues in relation to employment of staff members of a certain level and to provide the very safeguards to ensure due process.
“So the Respondents cannot act as a law unto themselves,” she declared, while noting that the Council cannot act beyond the scope of their powers and then say to an employee that they are estopped from challenging such an unlawful exercise of power because of a perceived convention in its engagement with the employee.
The M&CC cannot abuse its powers, the chief judge declared, while adding that it must follow the statutory provisions.
In the circumstances, the Chief Justice quashed the Council’s decision suspending Venture (the Applicant), for a month without pay and also granted him the prohibition order sought, directing the Town Clark and the Mayor and Councillors from exercising or imposing any disciplinary action against him, and from also terminating his employment without the approval or permission of the LGC.
Costs were awarded to Venture in the sum of $200,000.
In his fixed date application, Venture, through his lawyer, Ronald Burch-Smith, had asked the court to grant an order of prohibition preventing the acting Town Clerk, the M&CC or Council from exercising any disciplinary functions or imposing any disciplinary sanction against him or from terminating his employment without the approval or permission of the Commission or Order of court.
Venture, who was suspended without pay from his post by the Council on January 25th, had also asked for his suspension be quashed.
Counsel for the Respondents, Teni Housty, had argued that the basis for the no-pay suspension was due to what he called “the abuse of his (Venture’s) sick leave.”
Referencing the Termination of Employment and Severance Pay Act (TESPA), and citing a number of case law authorities, he said that suspension without pay is allowed for in those specific circumstances.
The lawyer said that while on sick leave Venture used the letterhead of his employer to complain about the employer. ”That is poorly inconsistent is our submission, with being on sick leave,” Housty advanced.
Describing that position as “novel,” Burch-Smith said he had never heard of
the use of a letter-head constituting a disciplinary offence in that way.
The attorney reasoned that perhaps if there were evidence that the applicant was hospitalised or claiming to so be, but yet he found his way to a computer to use the letterhead there may be cause but noted that even then, statute requires that disciplinary matters be referred to the LGC for its consideration.
He advanced that this is the procedure to be followed for both the actual and contemplated exercise of discipline.
Regarding the proposed motion to consider Venture’s dismissal, Housty had sought to argue that the Applicant’s challenge was premature, since no decision had actually yet been met to address or terminate his employment.
Burch-Smith, however, opined that the Respondents seemed to take the view that because they had “not yet acted unlawfully,” “or outside the scope of their authority,” that the court should do nothing until they decide whether they wish to act within, or outside the scope of their authority.
He noted instead that the legal authorities are clear that contemplated illegality can be constrained.
In her ruling, the Chief Justice also dismissed Housty’s position that the application was premature.
She said that in fact it was timely in ensuring that the statutory provisions are correctly followed regarding any disciplinary procedures in relation to the Applicant, while noting that he (Venture) had correctly sought the court’s guidance in judicial review.
Venture’s application had been intended to forestall the tabling of a motion for the termination of his employment.
Stabroek News had previously reported that the motion was premised on the Mayor and Councillors purportedly being empowered by Sections 74 and 75 of the Municipal and District Councils Act to employ officers to carry out functions and the contention that it was “in the interest of the Council” to terminate Venture’s employment.
Notably the motion, in violation of procedures, provided no reason for the termination beyond the “interest of the Council”.
There had been no mention of any attempt to exercise natural justice principles, including allowing Venture to respond to any accusations against him. In fact, there are no accusations made in relation to the officer’s performance of his duties.
The motion also misrepresented Sections 74 and 75 of the Act. These sections do not grant the Mayor or Councillors any powers; rather they list the specific “Local government officers” who should be employed at the Council.
The duties and powers of the Mayor and Councillors are listed at Section 8A and include such things as developing and evaluating policies and programmes for the municipality as well as making efforts to raise the levels of civic consciousness of the residents of the municipality.
In fact, Venture, though his lawyer, used the same sections in his application for relief as well as the Local Government Commission Act.