Over the past two weeks, I have been considering the case of Horace Fraser v Judicial and Legal Services Commission.
This week, I will look at a similar case, McPherson v the Minister of Land and Environment (2009).
By contract, the appellant, McPherson was appointed Director, Land Titles in the National Land Agency (NLA) for three years. He was subsequently appointed Registrar of Titles by warrant of the Governor General pursuant to the Registration of Titles Act (RTA) effective the same time as his contract of appointment as Director, Land Titles.
The notice of his appointments, published in the Jamaica Gazette reads: “Mr Alfred McPherson has been appointed to the post of Director, Land Titles/Registrar of Titles in the National Land Agency with effect from July 21, 2003.”
At the time of McPherson’s appointments, the chief executive officer (CEO) of the NLA was Mrs Elizabeth Stair, and shortly thereafter, disagreements arose between them.
By letter dated January 25, 2006, the CEO terminated the appellant’s contract with effect from January 26, 2006. The appellant was paid a sum representing three months’ pay in lieu of notice pursuant to his contract and a sum representing his accrued gratuity. He was informed by the CEO by the said letter that the Governor General had been requested to revoke his appointment as Registrar of Titles.
By letter of the same date, the appointment as Registrar was revoked by the Governor General on the advice of the Minister of Land and the Environment (the respondent).
The appellant applied for judicial review and sought:
1. An order to quash the decision of the respondent to recommend that the appellant’s appointment as Registrar of Titles be revoked.
2. A declaration that procedures established by the Public Service Establishment Act and the rules of natural justice were not complied with by the respondent in the decision making process with respect to the making of the said recommendation.
Among the issues were:
(1) whether McPherson became, by virtue of his appointment as Registrar, an officer in the public service of Jamaica and as such was entitled to the protection of the Public Service Regulations (PSR).
(2) whether by terminating the appellant’s contract of employment and revoking his appointment as Registrar, the respondent acted in breach of the PSR and/or the rules of natural justice.
The case was first heard by the Full Court which found that the appellant’s contract of employment related to both positions and that he was aware of that fact before he accepted the offer. The judges also held that the appointment as Registrar was not on the advice or recommendation of the Public Services Commission and his contention was that it had no merit. The judges also found that as a person on a fixed term contract of employment, the appellant was not entitled to invoke the provisions of the PSR save for those terms and conditions of the regulations which specifically were wide terms of the contract.
The Court of Appeal referred to Section 125(1) of the Jamaica constitution:
“Subject to the provisions of this constitution power to make appointments to public offices and to remove and exercise disciplinary control over persons holding or acting in any such offices is hereby vested in the Governor General acting on the advice of the Public Service Commission.”
The Court of Appeal went on to consider the definition of “public office” as well as the relevant statutory provisions which established the office of Registrar and found that the appellant was at all material times the holder of a public office and fell within the purview of section 125(1) of the constitution.
The court then considered the issue of the permissibility of a fixed contractual term of office by the holder of a public office and observed at paragraph 31 of its judgment that:
31. “The appellant’s contract of employment was for a period of three (3) years (clause 1) which could be extended by mutual agreement (clause 2). It seems safe to say there is nothing in the constitution inconsistent with the agreement of a fixed contractual term of office in the case of the Registrar of Titles – see Horace Fraser v Judicial and Legal Services Commission (supra) at paragraph 14 and Panday v the Judicial and Legal Services Commission (infra) at paragraph 57. In those cases the Board accepted the permissibility of even a short fixed term in the case of members of the lower judiciary. A fixed term in case of the Registrar of Titles is a fortiori constitutionally permissible.”
The court then went on to consider whether the appellant had constitutional or statutory protection against the revocation of his appointment in spite of his contract of employment which provided:
“Either party may terminate this agreement by giving to the other, three (3) months’ notice in writing or by the National Land Agency paying to the employee three months’ salary in lieu of notice.”
The Court of appeal said:
58. “On the authority of their Lordships’ decision in Fraser, I hold that the termination of the appellant’s appointment as Registrar of Titles under the contractual provision, without more, was unconstitutional in the light of section 125 of the constitution.
Under this section, reasonable cause for such removal must exist. Such reasonable cause must be determined by the PSC in accordance with the procedure prescribed by the PSR. Section 125 precludes the operation of the contractual provision for summary determination.
The appellant could not therefore be dismissed otherwise than in accordance with procedure prescribed by the PSR.”
• Cecil McCarthy is a Queen’s Counsel.
