Bilika Simamba v Chief Officer Portfolio of Legal Affairs
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Malcolm Swift |
| Judgment Date | 14 November 2014 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No G0060 of 2014 |
In the Matter of an Application for Judicial Review of the Decision of the Chief Officer, Portfolio of Legal Affairs Dated 28 TH January 2014 on the Applicant's Request for Permission to Engage in Private Gainful Activity
Hon. Mr. Justice Malcolm Swift (Actg.)
Cause No G0060 of 2014
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
The Applicant In Person
Mr. Tom Lowe QC and Mr. David Collier for the Respondent
The Applicant is employed by the Respondent as Senior Legislative Counsel in the Legislative Drafting Department of the Portfolio of Legal Affairs. He is permanently resident in the Cayman Islands.
The Applicant's employment is governed by his (most recent) employment agreement dated the 11 th December 2012 1 and by his job description dated 3 rd March 2007 2. His employment is by virtue of s.42(1) of the Public Service
Accordingly the Applicant's employment agreement provided at clause 12 7 that ‘the employee agrees not to, without the written agreement of the Chief Officer, engage in any private gainful activity that conflicts with the employee's duties, or might be reasonably perceived to conflict with those duties or that impinges upon the employee's ability to complete duties diligently and conscientiously in a manner that would normally be expected by a principal employer’. To all intents and purposes the Applicant's employment agreement reflects the regulatory requirement.
Clause 19 8 of the employment agreement further provides that ‘except for any provision that applies by virtue of law, this document constitutes entire agreement between the employer and the employee and replaces all previous Employment Agreements between the employer and the employee’.
The Applicant's job description clearly sets out the duties and accountabilities of the Applicant which include (inter alia) researching, analyzing and drafting primary and secondary legislation incorporating appropriate policies enabling the Government to carry out its functions, advising Ministers on methods available to achieve their policies, advising Government Departments on matters of statutory interpretation and on their duties and powers, advising the Attorney General, other Official Members and Ministers on proposals for legislation and ensuring that legislation withstands public, private and judicial scrutiny. The Applicant is also required to communicate with the public, private sector consultative groups and professional associations to provide explanations of existing and proposed legislation 9.
The Applicant's contract of employment is enforceable in the usual way and the Applicant is in no special position in that regard.
The fact that the prior written agreement of the Respondent is required before any private gainful activity may be commenced demonstrates that the Respondent has a discretion in reaching her decision whether or not to agree to the activity but of course that the discretion must be exercised fairly and reasonably.
On the 28 th January 2014, the Respondent wrote to the Applicant 10 denying his requests for written agreement to allow him to engage in private gainful activity. In letters dated 7 th October 2013 11, 13 th December 2013 12 and 23 rd December 2013 13, the Applicant had asked for approval to teach certain courses set out in that correspondence. The titles of the courses are contained in those letters together with a brief description of the courses (eg: ‘1-day introductory, 2-day advanced’). It is to be noted that the titles of the courses changed in December 2013 and brief general descriptions of the courses were provided but, as the Applicant agreed in the course of his submissions, the course materials and contents were not provided to the Respondent. The Applicant made adaptations to his proposed courses to ‘cater to members of the public and not to the public service in particular’ (13 th December 2013 letter) and set out his arguments in support of his proposals in the letter dated 23 rd December 2013. It is clear that discussions took place between the parties prior to the 23 rd December 2013 as the Applicant requested a formal decision in his letter of even date. It is also clear that the Applicant requested that the Respondent should, in reaching a formal decision, take into account the provisions of s.19 of the Cayman Islands Constitution Order 2009 14 (‘ CICO’) which provides that:
“all decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair’ and that ‘every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act”.
It is common ground, accepted by the Applicant in the course of his oral submissions, that he did not show his course materials to the Respondent who therefore was obliged to make her decision based upon the descriptions of the courses in the correspondence and in discussions with the Applicant. He further agreed that he was at liberty to submit his materials to the Respondent for consideration whether or not she requested them and said that he would have been happy to discuss the content if asked. He has also drawn my attention to his Affidavit in Reply 15 in which he asserts that the Respondent and the First Legislative Counsel declined an opportunity to review the book (written by the Applicant) upon which at least part of the proposed teaching was based.
The Applicant has addressed me on the effect of s.19 of the CICO 2009 and I shall return to that issue later in this judgment.
The Respondent's refusal on the 28 th January 2014 to grant the Applicant's requests (“the decision”) contained the following:
“ I have given detailed consideration to the various proposals and representations in the (letters dated 7th October 2013, 13 th December 2013 and 23rd December 2013) and wish to commend you on the initiative you have taken to address what you consider to be a lacuna in the training needs of the public service and to raise the awareness of the public at large. While I understand the assertions in your letter of 23' December 2013 that training per se is not a function of the Legislative Drafting Department, the area that you have identified for training falls within the scope of your work as Senior Legislative Counsel. As such I am of the view that the proposals conflict, or may reasonably be perceived to conflict, with your duties. In the
circumstances, the request for approval to engage in private gainful activity is denied”.
The Applicant replied on the following day (29 th January 2014 16) citing authority for his suggestion that the reasons provided by the Respondent for her decision were inadequate and failed to meet the requirements of S19 CICO and raising the possibility of an application for judicial review of the decision.
There was an exchange of emails between the 13 th and 18 th February 2014 17 the essence of which was that the Respondent was enquiring whether the Applicant was minded to facilitate training under the auspices of the Policy Co-ordination Unit in order to ensure oversight over consistency and appropriate content and the Applicant was indicating that he was prepared to provide training outside working hours and for separate payment as his proposal was a private project. However, later the Applicant on reflection indicated his willingness to provide a free one-day course pro bono for 15–20 people.
On the 9 th March 2014 18, the Applicant appealed against the decision by letter to the Civil Service Appeal Commission. The letter seems to have been copied to the Respondent. In it, the Applicant stated:
“I am just trying to contribute (to the society of which I am a part) in terms of public education mainly in the legislative process and the exercise of statutory powers, areas in which many civil servants and others may benefit. Some of them are even currently engaged in doing the same with ICCI and UCCI as tutors and lecturers. I am not sure how it helps the Chief Officer
and the First Legislative Counsel to fight this attempt to share knowledge with the public”.
The Respondent rejects those assertions and says:
“there is no intention to thwart his efforts to share his knowledge …. What divides us is whether those efforts should be explored and executed as part of his work and under the auspices of the Policy Co-ordination Unit or through his engagement in private gainful employment” 19.
The Respondent's submissions to the Commission (dated 4 th April 2014 20) contained the following (at para 9 et seq.):
“9. In my discussions with (the Applicant) on the first...
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