Restriction of Judicial Review where an Alternative Remedy Exists and the Public/Private Law Dichotomy
Despite the several avenues available for courts to intervene in the contract of employment to locate protective principles of public law, they have not always done so. However, in those cases where the courts have sought to restrict the purview of judicial review of the actions of public authorities in employment cases, the intention has not been to reverse the trend of increased protection of the citizen’s interests, but rather to enlarge the same.
In such cases, the denial of judicial review was because the person suffering an adverse consequence of a decision relating to their employment could be directed to an alternative means of redress in private law, one which would more easily afford them a remedy. This, for example, was because the courts recognized the harshness of the public law concept of dismissal at pleasure. By redirecting an application for redress to the private law avenue, the person applying for relief could rely on the now well developed remedies in private employment law, which prevent employers from dismissing employees without a fair and valid reason and without a fair hearing, or adherence to general natural justice principles. Thus, where courts have refused to apply public law, it was because adequate, or superior protective mechanisms could be located under private employment law.British courts were also responding to a vacuum in their own law — the absence of a written constitution and clearly enunciated principles of judicial review which placed corresponding duties on the state. The development of the public law/private law divide allowed the British courts to grant justice without disturbing important constitutional principles. Indeed, a contradictory principle of constitutional supremacy exists in the Commonwealth Caribbean. This was why in one stroke, and without committing constitutional heresy, dismissal at pleasure could be abolished.
However, the underlying reasons for the failure to apply principles of judicial review and the idea of the public/private law dichotomy, have not always been appreciated by West Indian courts. The jurisprudence has therefore been inconsistent.This notion that a court will not exercise its discretion in public law where an adequate remedy in private law exists is seen in the judgment of May LJ, in Ex p Walsh, where it was noted:
... over the last decade Parliament has enacted a body of employment protection legislation, now consolidated in the Employment Protection (Consolidation) Act 1978. This has created a new cause of action and consequent remedies for employees who have been �unfairly’ dismissed. An unfair dismissal under the statute is by no means simultaneously a wrongful dismissal at common law. This new cause of action, however, and the statutory remedies that go with it, are not enforceable by ordinary action, nor indeed by judicial review: they are only available to an employee upon a successful application to an industrial tribunal.
Upon a successful application to an industrial tribunal alleging unfair dismissal, the tribunal may in its discretion order the reinstatement of the employee. [or]. the employee is entitled to compensation under sections 71 to 76 of the Act of 1978, which will in most cases well exceed any damages to which the employee might have been entitled for wrongful dismissal at common law.
For all these reasons I think that earlier decisions in this general field must now be read in the light of the employment protection legislation to which I have referred.[317]
In fact, this distinction was noted by the Supreme Court of Canada. Speaking for the majority in the case of Dunsmuir, Bastarache and LeBel JJ in upholding the dismissal of an employee of a Provincial Government pursuant to a contract of employment pointed out that:
It is important to note as well that the appellant, as a public employee employed under a contract of employment, also had access to all of the same statutory and common law protections that surround private sector employment. He was protected from dismissal on the basis of a prohibited ground of discrimination under the Human Rights Act, R.S.N.B.
1973, c. H-11. His employer was bound to respect the norms laid down by the Employment Standards Act, S.N.B. 1982, c. E-7.2. As has already been mentioned, if his dismissal had been in bad faith or he had been subject to unfair dealing, it would have been open to him to argue for an extension of the notice pursuant to the principles laid down in Wallace. In short, the appellant was not without legal protection or remedies in the face of his dismissal.[318]Instructively, in several instances, courts in the United Kingdom have been persuaded that a remedy in private law is more adequate or suitable because of the availability of alternative domestic remedies. The point is made by Woolf LJ in McClaren v Home Office, in respect of the decision in Reg v Civil Service Appeal Board ex p Bruce.[319] According to his Lordship,
If there had not been available the more effective alternative remedy before an industrial tribunal, the Divisional Court would have regarded the decision of the Civil Service Appeal Board in that case as reviewable upon judicial review. The decision of this court which has just been given in Reg v Secretary of State for the Home Department, Exparte Attard, The Times, 14 March 1990 is another example of the same situation. There what was being considered by this court were the powers of a prison governor in connection with disciplinary proceedings in respect of prison officers. The prison governor’s disciplinary powers in relation to prisoners are reviewable only on judicial review (see Leech v Deputy Governor of Parkhurst Prison [1988] C 533 and they can also be reviewed on judicial review where they affect a prison officer on the application of that officer.[320]
The case of Re Aitken’s Application also underlined the point about the unavailability of a remedy as a basis for granting judicial review:
[In R v Secretary of State for the Home Dept, ex p Benwell [1985] QB 554] a prison officer had been dismissed for disobeying orders contrary to the code of discipline for prison officers.
In holding that the applicant was entitled to apply for judicial review Hodgson J was clearly influenced by two factors which he considered distinguished the case from the line of authority which preceded it. Firstly, the code of discipline under which Benwell had been dismissed had not been incorporated into his contract of employment. Therefore, in dismissing him, the Home Office was performing its duties under the statutory provisions by which it was empowered to order dismissal. Secondly, the applicant had no private law rights which could be enforced in civil proceedings nor could he have recourse to an industrial tribunal to claim that he had been unfairly dismissed.[321]The conclusion to be drawn is that the courts will place limits on their authority in public law where contracts of employment between employees and state employers are concerned, because of the acknowledgement of the public/private law divide and the existence of adequate private law remedies.
It should be noted from the outset, however, that Commonwealth Caribbean courts have never fully developed the public/private law doctrine as exhibited in the UK courts, perhaps because Order 53 mechanisms were not enacted throughout the region. It is questionable to what extent a clear public/private law dichotomy for such hybrid cases exists in the region. Indeed, recent cases which concern judicial review of constitutional human rights suggest that earlier restrictions on redress for violations of rights where private law remedies exist, are now increasingly being relaxed.
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