Common Law Developments - Walsh and its Progeny
Unquestionably, the trend under the common law, particularly with respect to judicial review of administrative action, has been to utilize the inherent supervisory jurisdiction of the courts to protect what is seen as the ever increasing power of the state over the interests and rights of ordinary citizens.
Common law courts have recognized that while legal relationships governing the state and its �private’ employees may be identified as existing under a contract of employment, they have considered that such employment, in certain circumstances, can have significant public law elements which must also be incorporated into the contract. Accordingly, English and other Commonwealth courts have opened doorways for decisions where the state as employer may be reviewed under public law principles. This is in certain strict circumstances.However, the jurisprudence has been far from uniform. Indeed, the law governing the dichotomy between public and private law in relation to contracts of employment has been marked by confounding tests and inconsistencies. Yet, upon close examination, they mirror the developments in relation to the expanding purview of judicial review. It is suggested that the tensions that exist, particularly in the Commonwealth Caribbean, stem mainly from the failure of the courts to fully appreciate these innovations as applied to employment law.
Moreover, some of these seeming contradictions in the case-law may be resolved if the courts are mindful of the additional constitutional umbrella of Commonwealth Caribbean jurisdictions. This should at least cause us to pause in adopting such English decisions wholesale. Instead, we should focus on a creative constitutional approach which emphasizes more, and not less accountability. The issue is one ripe for a mature reflection by our own judges and jurists, within the broader context of creating an indigenous common law jurisprudence which is more relevant to our needs.[290]
In one of the earliest cases on the subject, a UK court, in the case of Ex p Walsh,[291] identified the existence of public law principles applicable to employment.
The court held that where the terms of employment by a public body were controlled by statute, its employees might have rights both in public and private law to enforce those terms, but a distinction had to be made between an infringement of statutory provisions giving rise to public law rights and those that arose solely from a breach of the contract of employment. To avoid a finding that his application was a misuse of the procedure for judicial review under RSC, Ord 53, an applicant for judicial review had to show that a public law right which he enjoyed had been infringed.[292] The court stated:The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so on. Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee �public law' rights and at least making him a potential candidate for administrative law remedies. Alternatively it can require the authority to contract with its employees on specified terms with a view to the employee acquiring �private law' rights under the terms of the contract of employment. If the authority fails or refuses to thus create �private law' rights for the employee, the employee will have �public law' rights to compel compliance, the remedy being mandamus requiring the authority so to contract or a declaration that the employee has those rights. If, however, the authority gives the employee the required contractual protection, a breach of that contract is not a matter of �public law' and gives rise to no administrative law remedies. [293]
It is apparent that from as early as the Walsh case certain presumptions were made by the courts. First, that the applicant has a remedy or right in private employment law to fall back on, and secondly, that there is available an established judicial review mechanism, such as the Order 53 mechanism in the UK, which emphasizes a dichotomy between public law and private law causes of action.
A number of rationales have been put forward by the courts to explain their willingness to clothe decisions relating to contractual employment by the state with public law principles and protections. These will be considered in turn.
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