Okeke v University of Belize
| Jurisdiction | Belize |
| Judge | Morrison, J.A.,Mendes, J.A.,Awich, J.A.,AWICH, J.A. |
| Judgment Date | 28 March 2013 |
| Neutral Citation | BZ 2013 CA 5 |
| Docket Number | Civil Appeal 12 of 2010 |
| Court | Court of Appeal (Belize) |
| Date | 28 March 2013 |
Court of Appeal
Morrison, J.A.; Mendes, J.A.; Awich, J.A.
Civil Appeal 12 of 2010
Mr. Bryan Neal for the appellant.
Mr. E. Andrew Marshalleck SC for the respondent.
Employment Law - Dismissal — Declaration of wrongful dismissal and unlawful termination refused — Judgment appealed — Whether Trial Judge erred — Natural justice violation — Question of natural justice was not pleaded — Finding that appellant could not found ground of appeal on the question of natural justice — Orders made by trial judge confirmed — Appeal dismissed.
I have had the opportunity to consider in draft the judgment prepared by Awich, J.A. in this matter. I agree with the reasons he has given for the Court's dismissal of the appeal on 23rd October, 2012 and have nothing to add.
I too agree and have nothing to add.
The appellant, Mr. Stephen Okeke, was appointed an associate lecturer at the University of Belize, the respondent, on 1st August, 2002 by a letter of that date written by the President of the University, Dr. Angel E. Cal. The University is a statutory corporation established by the University of Belize Act, Chapter 37, Laws of Belize. On 11th August, 2004 the appellant was dismissed from his employment. The letter of dismissal was written by Corinth Morter-Lewis. Ph.D., President of the University, who succeeded Dr. Cal.
About 2 1/2 years after the dismissal, the appellant made a claim by a general claim form dated 23rd February, 2007 in which he claimed that the dismissal was unlawful, that it was, “arbitrary and without justification”. He asked for the following relief:
“1. A Declaration or Order that the termination of his appointment as Associate Lecturer (Permanent) from the University of Belize with effect from the 11th day of August 2004 was unlawful.
2. A Declaration that as a consequence of such wrongful dismissal the claimant is entitled to be paid damages for wrongful dismissal by the defendant.
3. An Order that the damages due and payable by defendant to the claimant be assessed and paid to him along with interest pursuant to Section 166 of the Supreme Court of Judicature Act, Chapter 91 of the Laws of Belize Revised Edition 2003, on the amount found to be due at such rate, and for such a period as the Court shall think fit.
4. An order that the defendant pay to the claimant the costs of these proceedings.
5. Such further or other relief as to the Honourable Court seems just.”
The appellant's claim was made on the grounds that: (1) the appellant, “carried out his duties in a diligent, competent and committed manner”; (2) the appellant made repeated requests to the University administrators to supply equipment, materials and books for teaching associate degree courses, but the administrators did not grant the request, and the appellant was unable to teach the courses assigned to him; (3) the respondent asked the appellant to assign to the students pass and credit grades when the students did not earn any grades, the appellant refused because it was unethical; (4) the students became undisciplined in the classroom, and the respondent refused to discipline them; and (5) on 11th August, 2004 the respondent, “arbitrarily and without justification terminated the [appellant's] appointment.”
The claim was in contract. It was based on a contract of employment between the respondent, the employer, and the appellant, the employee, which contract the appellant claimed, had been breached by the respondent when it wrongfully dismissed the appellant, “arbitrarily and without justification”. So, it is important to identify the terms of the contract of employment that are said to have been breached.
The terms of the contract were set out in the letter of appointment dated 1st August, 2002, by the President to the appellant, and in the “Faculty and Staff Handbook”, dated June 15th, 2000. The latter is a set of policies, rules, regulations and information that applied in regard to, among other things, disciplinary action regarding staff.
The letter was as follows:
“1 August, 2002
Dear Stephen Okeke:
I am pleased to inform you of the continuation of your appointment as Associate Lecturer-Permanent in the Faculty of Engineering and Information Technology. This appointment continues conditional on the following broad expectations with complete specifications within the UB Faculty and Staff Handbook and the job description that is attached. Teaching and service-are key responsibilities of an Associate Lecturer-Permanent. You are responsible to be in office a minimum of 35 hours per week for courses, consultation and service. Office hours must be posted on your door and be on file with the department secretary and Dean.
Your salary is to be paid on UB pay scale 18 at $27,912 per annum. On a day-to-day basis you report to the Dean (or his/her delegate) of the FEIT. Your Dean will conduct a yearly formal evaluation of your performance based upon your self-developed work plan and your job description.
…
Please sign and initial as appropriate both copies of this letter and return it to the Office of Personnel. Save one copy for your records.
In anticipation of your acceptance, we thank you for agreeing to remaining in the Academic Team of the University of Belize and we look forward to a fruitful academic year.
Sincerely,
A Cal
Angel E. Cal, PhD President
Copied to: Dean, FEIT”
The paragraphs of the Faculty and Staff Handbook which were made parts of the joint issues in the claim were: 3.10.1, 4.2.1, 4.2.2, 4.5.1, 4.8.1., 4.8.2.a, 4.8.2.c, 4.8. 2.d, 4.8.2.e and 4.8.4. I shall quote some of them when desired.
The post to which the appellant was appointed was described as, “associate lecturer-permanent”, in the Faculty of Engineering and Information Technology. That entitled him to “tenure” which was defined in paragraph 4.5.1 of the Handbook as, “a permanent status in a given post subject to termination only on resignation, retirement, termination for [a] just cause, or on closure or reorganization of a given unit or department”. A just cause is repeated in paragraph 4.8.1 as the reason for “termination or dismissal of [a] permanent/tenured staff”. At the trial it was common ground that the respondent would be entitled to dismiss the appellant or any lecturer for a just cause.
The respondent answered the claim of the appellant by stating that: (1) the appellant had been employed as a temporary employee at Belize Technical College, up to the year 2000 when Belize Technical College became part of the respondent; (2) the respondent first employed the appellant in the year 2000, as a temporary associate lecturer, and then in the year 2002, as an associate lecturer on permanent and pensionable terms in the Faculty of Engineering and Information Technology; (3) the respondent supplied materials, tools and equipment that were necessary for teaching the associate degree courses assigned to the appellant, the problem was that the appellant always failed to submit requisition for necessary materials; (4) the tools and equipment that the respondent had in the workshop were adequate for teaching the courses that the appellant was assigned to teach, but he refused to use the tools and equipment, and made unreasonable demand for equipment that the respondent was financially unable to purchase; (5) the appellant refused to teach using available tools and equipment and generally failed to attend classes and teach, and instead went to work in his sculpture business during the time he was required to teach students of the Faculty of Engineering and Information Technology; (6) because the appellant was missing too many classes and did not arrange for classes to make up for the lost classes, students became agitated and he could not manage discipline in the classroom; (7) appellant's students reported persistent absence of the appellant from classes to the Dean of the Faculty and to the President of the respondent; (8) appellant was generally lacking in his work, uncooperative and insubordinate towards his supervisor and other seniors; and (9) the respondent terminated the employment of the appellant for a just cause and in accordance with the procedure in the Faculty and Staff Handbook.
The appellant conducted his claim by adducing evidence by his own testimony alone, primarily to prove that, on that evidence his dismissal was not for a just cause, and was unlawful. Regarding the ‘arbitrariness’ of the dismissal, the appellant did not adduce evidence, his learned counsel, Mr. Anthony Sylvestre, simply relied on cross-examination of the witnesses for the respondent, as to the procedure or steps leading to the termination of the employment of the appellant. Mr. Sylvestre then urged that the testimony of the appellant be accepted as proof of no justification for the dismissal and proof of arbitrary manner of terminating the contract of employment.
The regulations in the Handbook that applied to procedure for termination of employment of permanent staff were in paragraphs: 4.8.1, 4.8.2.a, or c and 4.8.2.d. Paragraph 4.8.1 simply provided that, “termination shall be based on [a] just cause”, and that the President of the University, “shall afford to permanent/tenured … staff, all established due process/procedure/safeguards and protection …” Paragraphs 4.8.2.a and c set out the procedures step by step. Clause “a” applied when the disciplinary action was on the ground of criminal conviction, insubordination and other misconducts. Clause “c” applied when the performance of the member of staff was evaluated as poor. Clause “d” applied in the event of summary dismissal.
Although the appellant raised the question that he was dismissed, “arbitrarily and without justification”, and therefore in breach of the regulations in...
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