Shelley Ware Plaintiff v Cayman Islands Airport Authority Defendant
| Jurisdiction | Cayman Islands |
| Judge | The Honourable Mr. Justice Richard Williams |
| Judgment Date | 27 May 2015 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 148 OF 2013 |
| Date | 27 May 2015 |
Hon. Justice Richard Williams
Ms. Ware was appointed as the Financial Controller of the Cayman Islands Airport Authority (‘CIAA’) from 16 November 2009. The contract of employment setting out the terms and conditions of the appointment was signedon 11 November 2009 by Ms. Ware and the then Chief Executive Officer (‘CEO’) of the CIAA, Mr. Jeremy Jackson. The named parties in the contract of employment were the CIAA and Ms. Ware, Ms. Ware submits that she was employed by the CEO, with the Board's approval on 11 November 2009.
The CIAA is established by section 3 of the Airports Authority Law (2005 revision) (‘the Airports Law’). The functions of the CIAA are set out in section 5 of the Airports Law. Section 5(4) of the Airports Law states that the CIAA ‘shall perform its functions through the Chief Executive Officer,’
The CIAA has a Board of Directors (‘the Board’) who pursuant to section 10 of the Airports Law are responsible for the policy and general administration of the CIAA's affairs and business.
The CIAA contends that the Board delegated its function to Mr. Richard E. Arch, Chairman of the Board of the CIAA, pursuant to section 16(2) of the Airports Law. Therefore, by a letter dated 7 December 2012 Mr. Arch purported to terminate for ‘gross negligence’ Ms. Ware's appointment ‘in accordance with sections 51 and 52 o f the Labour Law (2011 Revision).’ Mr. Arch lists Ms. Ware's alleged breach of trust, failure to disclose to the Board relevant and pertinent information relating to theft and sub-standard management and oversight of the Finance Department as amounting to gross negligence. The CIAA contend that the decision was made after the Board, pursuant to a duty under section 10(2)(b) of the Airports Law to ‘oversee the effective performance’ of the Authority, had carried out an investigation.
In the letter Mr. Arch informed Ms. Ware that, pursuant to the Labour Law and clause 3 of the contract of employment1, she would receive one month's salary in lieu of notice and be paid for any accrued annual leave, He therein stated that she would also be paid severance at the rate of one week's basic wage for each of her four completed years of service.
The letter was handed to Ms. Ware at a Board meeting. The CIAA contends she was given an opportunity to reply to the allegations at the meeting but failed to provide an explanation about each of the allegations. Ms. Ware stated in a Complaint to the Director of Labour that she was simply handed a copy of the letter and that no discussion took place. At paragraph 5 on page 6 in her Application for leave she states that she was given no opportunity to respond to the findings of the report or to address the Board of Directors.
Pursuant to section 12(1) of the Labour Law (2011 Revision) (‘the Labour Law’) where an employer has terminated the employee's employment it shall, upon request being made by the employee at any time within fourteen days after the
termination of the employment, provide him within fourteen days with a written statement of the reasons for its action. The attorneys then representing Ms. Ware made such a request on 20 December 2012. On 4 January 2013 Mr. ICerith McCoy, the then Acting Chief Executive Officer of the CIAA, sent a letter to Ms. Ware entitled ‘Statement of reasons for termination from the Cayman Islands Airports Authority.’ In the letter he reiterated the basis of termination which had been set out in the 7 December letter, elaborating on the factual background of Ms. Ware's alleged conduct. Mr. McCoy referred to Clause 15 of the employment contract which provided that nothing in the contract prevented the CIAA from dismissing the employee summarily, without warning, if the employee is guilty of serious misconduct. I-Ie concluded that ‘although the CIAA sought to rely on Clause 3 of the Agreement as the basis to terminate your employment with the CIAA with notice, it reserves the right to rely on your conduct, described above, as a basis to support a finding of serious misconduct justifying immediate dismissal in any event,’On 15 January 2013, in accordance with section 54 of the Labour Law and following advice from her then attorneys, Ms. Ware filed a Complaint to the Department of Labour and Pensions. In the Complaint she sought ‘compensation for unfair dismissal.’
On 23 January 2013 the Director of Labour and Pensions wrote to the CIAA informing them of the Complaint and Ms. Ware's claim for ‘unfair dismissal and any other benefits that she may be entitled to under the Labour Law.’ The Director invited the CIAA to submit the evidential material by 14 February 2013. Regrettably, this letter was not served on the CIAA until 8 February 2013.
In accordance with section 75 of the Labour Law, the CIAA sent a detailed written response to the Department on 28 February 2013. In that letter they made it clear that they contested the allegation of unfair dismissal, and contended that if they were wrong, Ms. Ware was not entitled to any compensation as all due payments had been made, including severance.
Ms. Ware indicated that in early March she decided to ‘sack’ her former attorneys and instruct her present attorneys on 5 March 2013. It is clear that the attorneys took a different view to Ms. Ware's previous attorneys about the nature of any claim and how it should be made. In her affidavit she indicates that she was then advised that the appropriate claim to bring was one for judicial review, something which her previous attorneys had never mentioned to her.
On 10 April 2013, just over a month after Ms. Ware had retained her current attorneys, they sent a letter before action containing proposed terms for settlement to the CIAA. In the letter it was contended that the Board had no authority toterminate her employment and that she would ‘be seeking a declaration that the Board's decision of 7 December 2012 was ultra vires and unlawful’ Interestingly in this open letter her attorney indicated that on certain specified grounds Ms. Ware was willing ‘to undertake not to pursue any further court action, including an action at the Labour Tribunal.’2 This is a clear indication that Ms. Ware still viewed a Complaint in the Labour Tribunal as a possible avenue for redress. The letter demanded a reply within seven days, indicating that if one was not received or if there was a failure to accept proposals of the settlement, an application for judicial review, an application for damages would be issued. It is important to note that this is the first warning of an intended application for judicial review, and it is well outside of the three month period.
The attorneys for the CIAA duly responded on 17 April 2013. They pointed out that any claim for judicial review was, having regard to GCR Order 53(4), already ‘out of time’ as it had not been filed by 7 March 2013. In the letter they also contended that there was no right to judicial review as the relationship between Ms. Ware and the CIAA was of a private law nature and that no element of public law was involved.
Despite the CIAA's refusal of the proposed settlement terms, the attorneys for Ms. Ware did not then issue the proceedings, Instead, almost two weeks later, on
30 April 2013, they sent a letter in reply to the CIA A. In the letter they stated that their client had no alternative remedy available save for those under judicial review, It was contended that there was no recourse to the Labour Tribunal, because the client was considered as an employee of the Government. The CIAA were informed that if no indication about entering into settlement negotiations was received from them within four days, namely by or on 3 May 2013, then an application for judicial review would be made without any further notice.On 8 May 2013 Ms. Ware filed and issued an Ex Parte Application for Leave to Apply for Judicial Review of the decision of the CIAA to terminate Ms. Ware's employment, made five months earlier, on 7 December 20123 and its decision on 4 January 2013 to reserve the right to dismiss her for serious misconduct. An Amended Ex Parte Application was filed on 12 June 2013. During these proceedings Ms. Ware has concentrated on the earlier decision, contending that if the Court agrees that the decision is susceptible to judicial review then it is unnecessary to consider the latter decision.
The Application came before me ex parte on 12 June 2013. Upon reading the papers and after hearing from counsel for Ms. Ware it was evident to me that there were issues as to delay, alternative remedies and whether this was a claim in
private law rather than public law. This concern was expressed in my Ex Tempore Ruling. Having regard to the cases of (i) IRC v National Federation of Self — Employed and Small Businesses [1981] A.C. 617; (ii) R v Secretary of State for the Home department Ex Parte Rukhshanda Begum Ex Parte Angur Begum and Others [1990] Imm A.R. 1; and (iii) Reg v Camden London Borough Council ex parte Marten [1997] 1 W.L.R. 359, 1 felt it appropriate to adjourn the application to enable the proposed respondent to attend the leave hearing.In the Ex Tempore Ruling I expressed my view that it appeared that Ms, Ware had a sufficient interest. That part of the rules was established to prevent busybodies with no direct interest taking up someone else's case. This is Ms. Ware's own case, she has sufficient standing to bring it.
Although a transcript of my written ruling was provided to Ms. Ware's attorney at Court on 12 June, they did not write to the CIAA's attorneys until 27 June 2013 to notify them that the hearing had taken place and about what I had ordered. In the letter they mentioned that,...
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