Court grants former CMU interim treasurer leave in salary dispute with university

Former interim treasurer of the Caribbean Maritime University (CMU) Joy Harrison has been granted leave to appeal against a Supreme Court order which refused her application for leave to apply for judicial review arising from a decision by the university that she was not entitled to salary increments and other pecuniary benefits.

King's Counsel Douglas Leys, who is representing Harrison, said today that leave to appeal was granted by the Court of Appeal in June and he has since filed the grounds of appeal.

The Council of the Caribbean Maritime University is the respondent.

Harrison was contractually employed as the interim treasurer of the CMU for an initial two years effective May 5, 2020 with continuous subsequent renewals to January 31, 2023.

She complained that during her period of employment she was not paid the annual salary increment for the year ending May 7, 2021 to May 7, 2021.

She raised the matter with the president of the CMU in December 2022 and he responded in March 2023, explaining why she was not entitled to the benefits.

The president stated that the position of director of finance was an independent position under the Caribbean Maritime Institute Act and following the repeal of that Act, the position transitioned to that of the treasurer under the CMU Act.

The benefits of the position of director of finance remained for the person who held the position when the transition was made.

However, the position of interim treasurer was independent of the position of director of finance, an established post and therefore Harrison was not entitled to any benefit tied to that post.

On June 5, 2023, Harrison filed an application in the Supreme Court seeking leave to apply for judicial review of the president's decision.

She was seeking declarations that she was entitled to anniversary increments inclusive of travelling allowance, pursuant to the CMU Act and her contract of employment.

She also sought an order to quash the decision of the president that she was not entitled to the benefits.

Justice Sonya Wint-Blair ruled that the impugned decision was not amenable to judicial review as Harrison's contract with the university was neither regulated nor established by statute.

The judge found that Harrison was alleging a breach of contract which was ordinarily an action brought in contract as a matter of private law and made an order that the application be dealt with as a claim.

Harrison then sought leave to appeal the judge's ruling.

Leys argued on behalf of Harrison that the judge erred when she made orders refusing the declarations and then proceeded to order, even though conditional, that the application be converted to a claim under the Civil Procedure Rules.

Leys submitted that the judge erred in finding that the post of treasurer was neither regulated nor established by statute.

Leys objected to the order for costs awarded to the respondent.

He argued that costs were never generally awarded against an applicant at the application for leave stage except in very exceptional circumstances which did not apply in Harrison's case.

King's Counsel Symone Mayhew, who represented the respondent, had commenced her submissions by describing the orders made refusing the declarations and the order for certiorari as superfluous.

“Following engagement with the bench, she conceded that in making those orders, the learned judge had erred. She accepted that, as Mr Leys had contended, having made the orders she described as superfluous, the conversion was potentially meaningless. Accordingly, she was unable to resist the conclusion that the applicant had an arguable ground with a real prospect of success in relation to the challenge to the order that the application be treated as a claim, with the consequential order that a case management be fixed by the registrar as soon as possible,” the court said.

However, Mayhew maintained that there was no merit in the proposed grounds of appeal that sought to challenge the refusal of leave to apply for judicial review.

Mayhew contended that in any event the applicant's complaint about anniversary increments and travelling allowance were matters that must be determined based on the contract between the parties. She said also that since the applicant was engaged on contract, her claim must sound in contract and was a claim in private law with no public law element.

On the issue of costs, Mayhew acknowledged that it was unusual for costs to be awarded against a claimant in a judicial review claim but it was possible.

The court, comprising Justice Paulette Williams, Justice David Fraser and Justice Kissock Laing, said having considered the submissions of both lawyers along with the material provided, the concluded that an appeal against the judge's decision had a real chance of success.

Leave was then granted to appeal the judge's decision of November 16, 2023.

- Barbara Gayle

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