Civil Aviation job row heads to appeal court

A CONTRACT case in which a former director general of the Jamaica Civil Aviation Authority (JCAA) claimed he lied in 2011 to a bank on behalf of an employee is heading to the Court of Appeal.

On Wednesday, a panel of appeal court judges gave permission to the JCAA to appeal a 2020 Supreme Court ruling that said the agency breached its contract with its former legal officer, Lijyasu Kandekore.

Kandekore was employed on a $4.2m three-year contract in March 2009, and in September 2011, about five months before it expired, he emailed the then JCAA board Chairman Y.P. Seaton and, a month later, the then director general, Lt Col Oscar Derby, offering to stay on for another term.

But the JCAA opted not to renew the contract in March 2012, prompting Kandekore to take legal action, resulting in the court ruling and an order for the lawyer to be paid over $15m plus interest for the breaches.

Along with the emails, Kandekore said in late 2011, he held several office conversations with Derby, whom he claimed assured him that the contract would be renewed.

He also pointed to letters, in December 2011, written by Derby and Seaton on his behalf to the National Commercial Bank (NCB) assuring that Kandekore’s contract would be renewed.

However, days after an enquiry, the human resources department wrote him on March 1, 2012, indicating that there would be no extension.

According to court documents, Kandekore alleged that the nonrenewal put him at a disadvantage because he had taken a loan from NCB on the basis that the contract would be extended.

He sued the government agency in 2014, claiming there was a binding and enforceable agreement for the renewal of his contract on the same terms and conditions as the previous one.

At the trial in February 2020, Kandekore, who is represented by Lord Anthony Gifford, argued that the letters to the NCB were “powerful evidence” that a new contract was settled.

But the JCAA insisted that the elements of a contract were not made out.

One of its lawyers, Susan Reid-Jones, accepted that Kandekore did offer his services but noted that there was no acceptance, no intention to create a legal relationship, and no certainty of the conditions.

She said the bank letters were vague and were just to help Kandekore get his loan, adding that “many people intend to do things but do not actually do them”, the Supreme Court judgment reported.

The JCAA attorney pointed to a March 2012 memo Derby issued to Kandekore in which he said he could not have given any assurances that the contract would be renewed even though it was “likely”.

Derby denied having any conversations with Kandekore and indicated that he lied to NCB and did not “free the bank of this deception despite knowing how serious the situation was or how reliant the bank would have been on his letter”.

According to Derby, he signed the letter Kandekore drafted for “humanitarian reasons”.

Justice Gloria Henry-McKenzie, who presided over the trial, accepted that the conversations between Kandekore and Derby took place and that what the director general said amounted to an “oral acceptance” of Kandekore’s offer to stay on.

She said those conversations were supported by the letters that Derby and the chairman eventually sent to NCB.

The judge rejected Derby’s claim that he lied to the bank, because it was “improbable that a man of his stature would deliberately mislead the bank”.

Justice Henry-McKenzie said she did not place much emphasis on Derby’s March 2012 memo because it came months after Kandekore indicated he wanted to renew his contract and only after Kandekore expressed displeasure about how he was being treated.

At Wednesday’s hearing of the JCAA’s application for permission for appeal, Faith Hall, who appeared for the authority, insisted that the judge erred in concluding that a contract was agreed.

Hall was representing the Attorney General’s Chambers. Gifford countered that the ruling was correct and should not be disturbed.

Justices Paulette Williams, Evan Brown and Nicole Simmons agreed that the basis of the Supreme Court decision raised arguments that could be further explored and gave the JCAA permission to appeal.

A date is to be fixed.