Perry v Guyana National Engineering Corporation
| Jurisdiction | Guyana |
| Judge | Bishop, J.A |
| Judgment Date | 27 March 1991 |
| Neutral Citation | GY 1991 CA 5 |
| Docket Number | Civil Appeal No. 74 of 1988 |
| Court | Court of Appeal (Guyana) |
| Date | 27 March 1991 |
Court of Appeal
Kennard, J.A.; Bishop, J.A.; Churaman, J.A.
Civil Appeal No. 74 of 1988
Ashton Chase, senior counsel for the appellant.
R.E.O. Moriah for the respondents.
Judicial Review - Application by former Supernumerary Constable that the termination of his appointment and dismissal were invalid; that the learned trial judge misconstrued the Police Act, s.82(6) and for damages for breach of legal provisions — Finding that respondents invoked mechanisms for demotion of officer from sergeant to corporal which were inappropriate and not authorised by the legislation and made his alleged misconduct the subject of their own internal discipline code — Applicant's declarations granted and damages awarded for wrongful dismissal but not for breach of legal provisions.
This is another appeal involving a member of the Supernumerary Constabulary, constituted under Part XIV of the Police Act, Chapter 16:01, and the organisation which, by virtue of section 82(1) of that Act and through its predecessors in title, had the appellant's status changed from security guard to supernumerary constable in 1973. To do so, the instrumentality of the Commissioner of Police was necessary, since the section reads:
“If in any case application is made by any person to the Commissioner for constables, subordinate officers and/or inspectors to be employed in his service on special duties the nature of which duties shall be specified in the application, the Commissioner may, if he thinks fit, appoint men as supernumerary constables, subordinate officers and inspectors to be employed on the special duties specified in the application.”
The foregoing sub-section therefore shows that the appointment to the status of a supernumerary is made by the Commissioner of Police, in response to a request from some one or some organisation in the society; and the maintenance of the persons(s) so appointed is to be met by the successful applicant: “the cost of the uniform shall be paid annually in advance and the pay and expenses shall be paid monthly in advance to the Commissioner”; see section 82(4).
It follows, therefore, that the successful applicant may be called the sponsor-employer; but though the appellation is consistent with the stipulation of sub-sections (1) and (4) of section 82, when they are conjoined, there remains section 82(6) which, while not hindering the judgment of the sponsor-employer to terminate the contractual relationship between himself and the supernumerary, requires the passage of a statutory period between the decision to terminate and the day the supernumerary should officially depart. Section 82(6) accordingly prescribes two types and levels of notices:
“Whenever any person availing himself of the services of [supernumeraries] no longer desires to maintain such [supernumeraries], or wishes to reduce the number of such [supernumeraries], he may terminate their services by giving two months' notice thereof in writing to the Commissioner. A [supernumerary] shall be given one month's notice of the termination of his employment by an officer of police”.
The judicial view is that the statutory period was prescribed for the benefit of the Commissioner as well as the supernumerary. R.H. Luckhoo, J.A., in Munisar v. Bookers (Demerara) Sugar Estates Limited (1979) 26 W.I.R. 336, at p. 379 explained how the notice, to be given the supernumerary, was dependent upon the sponsor-employer's notice to the Commissioner:
“In my view both statutory obligations must be discharged in order to terminate the appellant's contract of employment. The performance of one without the other will not avail. It is the combined effect of the satisfaction of both statutory requirements that validly determines the employment. Put another way, compliance with the first statutory requirement was a precondition to the giving of notice by an officer of police. The need for the second notice would not arise unless and until the first requirement had been met.”
However, although the learned Justice of Appeal accorded section 82(6) such importance, he appreciated, at p.380 - letter g that failure to give the requisite two months’ notice did not go beyond compensation, a remedy which our law knows and applies, at times in another area, the ‘Sale of Goods’ for example. To all intents, the compensation is the equivalent of two months’ salary.
I accept that interpretation while being aware, as was pointed out in Re Application by Godfrey Caesar, an unreported decision of this court, dated February 13 th 1989, that there was a time when legislation permitted the commissioner, then called Inspector General “in his discretion to dispense with the notice”: see the Constabulary Ordinance, Chapter 30, section 42 of the Laws of British Guiana. Twenty-eight years after that promulgation, the Police Ordinance, No. 39 of 1957 withdrew that discretion and enlarged the month's notice to two months. Munisar's case describes the notices as “statutory obligations” or “statutory requirements” which description manifestly reflects the view of the legislature, from 1957 on to the present time, to exclude any attempt or arrangement, between a sponsor-employer and a supernumerary, or a union on behalf of supernumeraries, or between the sponsor-employer and the Commissioner of Police, to circumvent the necessity for, or operation of, the statutorily required notices in writing.
Yet, fundamentally, the supernumerary and his employer are in a common law relationship of master and servant and the statutory notice prescribed in section 82(6) does not imbue the supernumerary with public law rights or prevent arbitrary dismissal of him. In Munisar v. Bookers (Demerara) Sugar Estates Ltd. (1979) 26 W.I.R.337, Crane, J.A. as he then was, expounded the relevant law by which the supernumerary was affected. In his formulation which took account of R. v. National Arbitration Tribunal ex p. Horatio Crowther & Co Ltd. [1947] 2 All E.R. 693, Vine v. National Dock Labour Board [1958] 1 All E.R. 322, and Ridge v. Baldwin [1963] 2 All E.R. 66, among others, His Honour expressed, this way the principle governing termination of the supernumerary's services, at p. 355 - letter g:
“… there need be no reason given, no sufficient or no reason given at all provided only, if the services of the employee have been wrongfully terminated, he would then have a right of action for wrongful dismissal.”
In the Barber case (supra) the trail judge, Barry, J. contrasted the case before him with a famous one by saying:
“… in Vine v. National Dock Labour Board … the plaintiff was working under a code which had statutory powers, and, clearly, in those circumstances, all the Lords of appeal who dealt with the case in the House of Lords took the view that the case could not be dealt with as though it were an ordinary master and servant claim in which the rights of the parties were regulated solely by contract. Here, despite the strong statutory flavour attaching to the plaintiff's contract, I have reached the conclusion that in essence it was an ordinary contract between master and servant and nothing more”.
And so, even though no one can successfully, in a court of law, question the sponsor-employer's motives for dismissing the supernumerary, the employer is nonetheless statutorily required to give the Commissioner the specified notice of his decision to terminate the supernumerary's services; but where the situation is such that it would be in the sponsor-employer's interest to sever the contractual bond immediately: that he has time only to forward notice of his ‘desire’ to the Commissioner of Police, but cannot await the expiration of the two-month period, as required by section 82(6), the question of compensation will arise, and the sum will be the equivalent of the supernumerary's salary for two months.
I have chosen an introduction which presents the relevant history and law, but which seems to have escaped the knowledge of the appellant's employers. That could be the only reasonable explanation for the respondents acting in a manner that was clearly oblivious of section 82(6) of the Act. The evidence of the Administrative Manager graphically illustrates the case in point. Said he:
“There is an agreement between the Union and the Corporation covering the employment of security guards. Such an agreement was entered into in August, 1976 … wages and conditions of security guards up to the rank of corporal are covered by that agreement. Sergeants are covered by administrative practices pertaining to junior supervisory staff. Discipline and termination of employment are covered by section 3 under the heading, “Rights and Responsibilities”, [under] section 15: ‘Continuous Service’, [under] section 16: ‘Termination of Employment’, and [under] section 21: ‘Disciplinary Action’. Several letters were sent to the plaintiff about performance. I never spoke to him personally about his performance. I know that the former Administrative Manager and the Industrial Relations Officer spoke to him. I sent a letter of dismissal to the plaintiff. He was then a Corporal, having been reduced to this on 20 th June, 1986. Same security guards are sworn in as supernumerary constables for the purpose of making arrests within the [Corporation's] compound and for bearing arms also. The supernumerary constables are not under the control and employment of the Commissioner of Police. We use the terms ‘Corporal’ and ‘Sergeant’ as administrative convenience to denote rank. The conditions of service and pay are decided on by the Corporation.”
I commence my comments on that evidence by simply saying that the respondents were in error when they ignored the statutory requirement stated in section 82(6), side-stepped the Commissioner and sent the letter of...
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