Caribbean Responses to Contracts of Employment of the State

A number of courts in the Commonwealth Caribbean have considered the question whether decisions relating to contracts of employment where the state or Crown is the employer are reviewable.

In Romain v Water and Sewerage Authority,^[341] for example, Ramlogan J held that the Water and Sewerage Authority of Trinidad and Tobago in terminating the employment of the applicant without a hearing, was not performing a public function even if statutory regulations which were abolished in 1980 applied by agreement. The failure to find a ground for judicial review is perhaps explained by the fact that an agreement to

apply a previous statute is not to be equivalent to a statute in existence.

In contrast, in the later case of Singh v Agricultural Development Bank,⁶⁹ Tiwary-Reddy J held that a statutory Board which terminated the employment contract of the applicant allegedly for failing to implement a Board decision, â€?was exercising a public law function.’

Given the rapid developments in administrative law and the expanding purview of judicial review, it is understandable that a case decided some seven years later than Singh could treat the issue of the capacity of the courts to intervene in cases with a public law flavour more liberally. This was after the developments in administrative law which examined judicial review not only from the perspective of the source of the power, but also the nature of the decision and its impact on the public.^{[342] [343]}

In the Organisation of Eastern Caribbean States (OECS) jurisdiction, in the case of British Virgin Islands Electricity Corporation v Virgin Islands Electricity Corporation Appeal Tribunal, Rawlins J, as he then was, held, inter alia, that a statutory tribunal established by the BVI Electrical Corporation Act was a public body amenable to Judicial Review.

Now the corporation, a public body and a creature of statute, stands to be adversely affected by the decision of the Tribunal. That decision is of a public nature. The Corporation has the required nexus for the purposes of locus standi under Part 56.2 of the Rules. It is a body that has sufficient interest in the subject matter of the application for judicial review under Part 56.2(2)(e) of the Rules. It is a statutory body within whose statutory remit the subject matter of this case falls.^[344]

However, in another case involving the same applicant, Turnbull v Abraham, Hariprashad-Charles J declared:

Further, I take comfort from the judgment of Rawlins J in Turnbull No.1 [supra]. In that case, Mr. Turnbull (the present applicant) was offered the position of General Manager of the Corporation on an acting basis for a period of one year. The Corporation decided to revert him to his substantive post of Deputy General Manager. Mr. Turnbull appealed the decision and the External Appeal Tribunal heard the appeal. The majority was of the view that Mr. Turnbull had been dismissed from the position of General Manager and that the dismissal was procedurally incorrect. No preliminary objection was taken. Rawlins J. (as he then was) held that locus standi was not in issue. The Corporation, a public body and a creature of statute, stands to be adversely affected by the decision of the External Appeal Tribunal. The decision is of a public nature and as such, it was amenable to judicial review.

While it is true that in Turnbull No. 1, the Corporation had no other way of addressing the issue, it is mind-boggling to see how in that case, the Court decided that the External Appeal Tribunal was amenable to judicial review and in the present case, this Court should find that the same tribunal is not. However, the dissimilarity between Turnbull No. 1 and the present case lies in the fact that the applicant here, has the alternative remedy of suing for damages in private law.^[345]

Two points emerge from these cases. Firstly, Judicial Review may be denied if alternative domestic remedies are available and are adequate. Secondly, if there is no contractual protection, then administrative law remedies may be invoked. The critical question becomes this: where an employee of a public authority is not protected from unfair dismissal by a contract, where does the remedy lie, in private law or public law? The response should be — in public law.

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