Malcolm Webster v Health Authority of Anguilla
| Jurisdiction | Anguilla |
| Judge | ‘Innocent, J.’ |
| Judgment Date | 28 February 2022 |
| Judgment citation (vLex) | [2022] ECSC J0228-1 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Year | 2022 |
| Docket Number | CLAIM NO. AXAHCV 2021/0007 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. AXAHCV 2021/0007
Ms. Jean M. Dyer of Counsel for the Claimant
Mr. D. Michael Bourne of Counsel for the Defendant
Employment Law — Disciplinary Proceedings brought against employee — Employee claiming right to be represented by legal practitioner at disciplinary hearing — Labour Relations Act, 2018 (‘LRA’) section 116(2) — Whether employer failed to properly exercise its discretion under section 116(2) of the LRA in refusing the employee's request to be represented by counsel at disciplinary hearing — Whether in refusing employee's request employer exercised its discretion unfairly and irrationally — Whether refusal to allow legal representation unfair and in breach of principles of natural justice — Whether employee ought to have been permitted legal representation at disciplinary hearing
This judgment concerns a claim brought by the claimant seeking a Declaration that the defendant acted improperly and unfairly in refusing to exercise its statutory discretion under section 116(2) of the Labour (Relations) Act, 2018 (the Act) to permit the claimant to be accorded legal representation at certain disciplinary proceedings brought by the defendant against the claimant.
The claimant is a Civil Engineer by profession and is employed by the Health Authority of Anguilla (‘HAA’) in the capacity of Director of Facilities since 11 thNovember 2013. The HAA is a body corporate established under section 4 of the Health Authority of Anguilla Act. 1
On 26 th January 2021, the claimant received a letter of even date headed “Invitation to a disciplinary hearing” directing him to attend a disciplinary hearing to be held on 27 th January 2021. 2 The convening of the disciplinary hearing was made pursuant to section 5.8 of the Employee Manual. The disciplinary hearing was in relation to the consideration by the Human Resource Committee (the ‘Committee’) of charges of gross misconduct under section 5.4(4) of the Employee Manual, in particular paragraphs (q) Gross insubordination or willful disregard or disrespect toward a supervisor or representative of management; and (v) serious misconduct of any nature, which adversely affects the organisation's best interest and reputation, to include acts of a criminal, dishonest and immoral nature. The defendant was by the same letter informed of his rights which included his right pursuant to section 5.9 of the Employee Manual, to be accompanied by a fellow employee of his choice or a member of the Staff Association, if he so desired.
The defendant's legal practitioner responded to the claimant's letter of 26 th January 2021 requesting an adjournment of the disciplinary hearing to afford the claimant reasonable time to prepare his defence and to give necessary and proper instructions to his counsel in light of the short notice given to him. 3 On 27 th January 2021 the Committee wrote acknowledging the claimant's letter informing that a new meeting date would be set after confirmation by the Committee. 4
On 3 rd February 2021, the Committee wrote to the claimant's legal practitioner in the following terms:
“Section 5.9 of the Health Authority of Anguilla Employee Manual, of which Mr. Webster is aware, makes clear that “Subject to the Regulations, Policies and Procedures of the HAA, the Human Resources Committee shall advise the employee of his/her right to be accompanied by a fellow employee of their choice or a member of his or her Staff Association.” This position is
consistent with the applicable law, that is, section 116 of the Labour (Relations) Act 2019. Please therefore be advised, having considered the present disciplinary matter, the hearing is not complex or one of exceptional circumstances where the justice of the case requires the attendance of legal counsel.” 5
Ms. Jean Dyer, counsel for the claimant responded to the Committee's letter of 3 rd February 2021 in the following terms:
“We are in any case instructed to request… that the Committee revisits its decision since it seemingly did not consider all of the relevant factors in arriving at same. While we accept that legal representation is not an absolute right under the Labour (Relations) Act, 2018 (“the Act”) for employees appearing before a disciplinary hearing, the Committee has a discretion under section 116 of the Act as to whether to allow legal representation at a disciplinary hearing. The authorities make clear that the Committee is to exercise its discretion properly. We respectfully submit that the Committee has not done so since it was seemingly oblivious to the fact that:-
(i) the notions of fairness and equity apply to disciplinary proceedings;
(ii) the Committee is subject to the duty of observing what are called the rules of natural justice; and
(iii) where the charges are serious and the employee's livelihood and or reputation may be affected by the outcome, natural justice requires that he be defended, if he wishes, by legal counsel. We would respectfully refer you in this regard to the dicta of Lord Denning in Pett v Greyhound Racing Association Ltd. [1969] 1 QB 125 …”
Ms. Dyer, by her letter went on further to state:-
“The Committee ought to have considered the following material factors in exercising its discretion:-
(i) that the charges made against our client are serious and affect not only his reputation but also his livelihood. Indeed our client stands the chance of losing his employment with the HAA given the CEO's recommendation that this case warrants more than a final written warning. Natural justice requires that our client be defended by counsel as per his wishes; and
(ii) the procedural irregularities complained of by our client and the objections made on his behalf are such that our client would be disadvantaged if he were represented by a member of the HAA or the Staff Association and not by counsel. They cannot reasonably be expected to make submissions on such procedural points. In any event,
it would be inappropriate for a member of staff to attend and make such objections and point out the procedural errors made by the CEO.
The Committee responded to Ms. Dyer's letter by correspondence dated 8 th February 2021. 6 It will be necessary to refer to the contents of this letter in extenso as it sets the backdrop to the present legal proceedings. The Committee wrote:
“With respect to your contentions that the Human Resources Committee has not properly considered the matter of Mr. Webster being legally represented, we disagree. As we have stated, Mr. Webster has been at all times aware that the legal representation is not provided for in the Employee Manual with respect to internal disciplinary matters of the HAA; a position which is consistent with the Labour (Relations) Act. Further, the Employee Manual is part of his employment contract with the HAA and same has been accepted by him. This position has not expressly or impliedly altered.
The Committee's letter went on to state their position based on legal advice obtained and made reference to the matters that the Committee took into account in arriving at their decision not to permit the claimant to be represented by counsel at the disciplinary hearing. The Committee stated in this letter that:
“We are advised that the requirements of natural justice are fact specific. As such the statement of Denning LJ cannot be considered to be a one size fits all prescription.
For the avoidance of doubt, we have considered, amongst other things the following matters in arriving at our decision: the HAA policy as stated in the Employee Manual, the nature of the matter; and the potential severity of the consequences of an adverse finding.”
It appears from the correspondence mentioned above that the Committee held the view that they, having considered the Employee Manual, found no ambiguity as to the class of persons who may accompany the claimant at the disciplinary hearing. The Committee based their position on the fact that the matter was not of a complex nature and while the potential for the claimant's dismissal existed it ought not to prevent him from continuing in his chosen profession. According to the Committee's letter, they having considered these factors, had formed the view that the case was not an appropriate one to create an exception and allow the claimant to be legally represented.
The claimant's counsel replied to the Committee's letter of 8 th February 2021 by letter dated 10 th February 2021 7 indicating that the Committee's decision was irrational and that it had not properly exercised its discretion in relation to the question of whether the claimant ought to be permitted to be represented by counsel at the disciplinary hearing.
On 18 th February 2021, the claimant filed an application for an interim injunction restraining the Committee from proceeding with and hearing the disciplinary proceedings against him until further order of the Court or unless he was permitted to be represented by legal counsel.
The claimant's application for an injunctive relief was heard on 25 th day of February 2021. On that date the Court ordered that the disciplinary proceedings against the claimant by the HAA be stayed pending the determination of the claim or further order of the Court; and gave directions for an early trial of the claim.
In the present proceedings, the claimant seeks a declaration that the Committee's decision refusing to permit him to be accompanied and represented by legal counsel at the disciplinary hearing was an improper exercise of its statutory discretion conferred upon it by section 116(2) of the Act.
The starting point of the claimant's submission is that the claimant, as an employee, is...
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