Where a Private Law Remedy Exceeds the Public Law Remedy
A point that can easily be missed is that a court may insist upon a private law remedy, not in order to diminish the state’s accountability, but to enhance it. For example, this may occur where the law permits the state much leeway in employment decisions where dismissal at the pleasure of the Crown/state obtains.
In such cases, the court may impose a private law remedy in order to frustrate the latitude of the state and thereby protect the employment interests of the employee. This was the situation in the case of Wells v Newfoundland.[335] In Wells, the Supreme Court of Canada treated the contract as a private one in order to impute responsibilities of the state toward its employees, despite legislation which abolished his office and sought to deny him compensation. The salient point is not where the contract is located, but the accountability of the state. The court said:The respondent held a senior public position of quasi-judicial responsibility. No misbehaviour was alleged against him, but his position was eliminated. In the private sector, this would clearly constitute a breach of the respondent’s contract of employment, and he would be entitled to damages. His status as an employee of the Crown, in the circumstances, should not be different. The law regarding senior civil servants accords with contemporary understanding of the state’s role and obligations in its dealings with employees. The most plausible interpretation of the respondent’s terms of employment is that while his position, and the authority flowing from it, could be eliminated, he could not be deprived of the benefits of the job except by virtue of age or bad behaviour....In a nation governed by the rule of law, it is assumed that the government will honour its obligations unless it explicitly exercises its power not to.[336]
The reasoning in Wells was followed closely by the recently constituted Caribbean Court of Justice in Edwards v AG and the Public Service Commission.64 In Edwards, counsel for the appellant contended that since an order on the constitutional motion in the second action would make a dismissal by the state a nullity, the appellant would be entitled to be treated as if he continued to be employed up to the normal retirement date of 31 July 1990 — with the result that the appellant could properly claim all his superannuation benefits as if he had worked until retirement. The CCJ referenced the private/public law dichotomy in coming to its decision:
We are conscious of the dual dimension of the public employment relationship i.e.
the public law and the private law elements. The notion taken from public law that a dismissal may be a nullity presents problems in terms of the relief appropriate in a case where a considerable period of time numbered in years has passed since dismissal during which the employee has performed no services for the employer. One possible approach is to say that the consequences of such nullity must vary �according to the facts of the particular case', including whether the employee remained ready, willing and able to work for the employer notwithstanding the termination and sought relief in the courts expeditiously: see the approach taken by Lord Bingham of Cornhill in McLaughlin v H.E. the Governor of the Cayman Islands. However, it may be more appropriate to treat the State as any private employer, as this Court indicated obiter in Brent Griffith v Guyana Revenue Authority. In this way, a court might focus on the private law contractual obligation; see also the approach of the Canadian Supreme Court in Her Majesty the Queen in Right of Newfoundland v Andrew Wells. We need not consider the merits of these contrasting approaches.[337] [338]A salient point to note is that because the doctrine of dismissal at pleasure has been abolished in the Commonwealth Caribbean, the rationale behind the Wells line of cases is entirely absent. As such, the imposition of a private law remedy will rarely be a better option, a point which seems to have been missed by the CCJ.
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