Lisa Monique Williams v. Office of The Complaints Commissioner (Legal Representative in the capacity of the Attorney General) (CL-AP 6 of 2023) [2024] TCACA 14 (23 October 2024)

Background

1. Lisa Williams (the Appellant), entered into a contract of employment with the Complaints Commission (the Commission) under a fixed term contract dated September 16, 2019, for a period of 2 years commencing on the said date. Clause 2.2 of the said contract provided that the Appellant should at all times faithfully and diligently perform her duties, observe the duty of confidentiality in respect of the work of the Commissioner, obey any and all lawful and reasonable directions from the Commissioner. Clause 8 of the said contract provided for confidentiality and integrity. She was also required to sign an oath of secrecy pursuant to section 5 of the Complaints Commission Ordinance as set out in Schedule 2 therein.

2. Over the course of her employment, the Appellant became privy to information and documents pertaining to employees at the Commission and circulated same to several persons outside of the Commission and without the expressed or implied permission of the Commission. These persons included but were not limited to, the Principal Crown Counsel, (International) in the Chambers of the Attorney General, the Deputy Director of Public Prosecutions, the Deputy Attorney General, the Bar Association of Turks and Caicos Islands (TCI), and Mr. Larry Lawrence bank manager of First Caribbean International Bank, (FCIB, the Bank). In particular, by letter dated January 6, 2020, the Appellant alleged that the Investigative Officer, Ms Willette Pratt (Ms Pratt), was not a suitably qualified candidate for the position since she was not admitted to the Bar of the TCI and was not a practicing attorney at law capable of fulfilling her duty of legal adviser to the Commission. She also alleged that Ms Pratt was engaged in financial misconduct.

3. The Appellant was first issued a warning concerning her misconduct from Mr Paul Harvey the then Commissioner (Commissioner), by WhatsApp message on June 1, 2020, and on June 2, she also received a letter for misconduct and breach of confidentiality from the said Commissioner. This was a warning letter from the Commissioner entitled, “Written Warning Letter For Misconduct Due to Breach of Confidentiality.” He reminded her of the oath of secrecy and outlined her several breaches as follows:

1. Submitting email correspondence without express or written authorization.
2. Submitting correspondence to the TCI Bar Association while the Commissioner was on leave and without his express authorization to do so.
3. On several occasions disclosing confidential Human Resources information concerning Ms. Pratt publicly and without authorization disclosing her contract of employment.
4. Emailing correspondence which she was asked to prepare in confidence to persons outside of the Commission who had no connection to the matter and without permission being granted to publish such information.
5. Approaching persons at the Attorney General’s Chamber on behalf of the Commission with no express or written authorization to do so.
6. Providing KMPG with information she was not privy to within the Commission prior to her contract of employment.

The Commissioner warned the Appellant that her misconduct is a breach of her contract and if continued, it would lead to early termination of her employment.

4. By correspondence dated June 15, 2020 the Appellant referred two matters to the office of the Governor for investigations. The first was the allegation of false credentials presented by Ms Pratt and the second was the allegation of breach of confidentiality against her by the Commissioner. By letter dated August 14, 2020, the Executive Director of the Governor’s office, Mr James Astwood indicated that the allegation against Ms. Pratt was unfounded in that she had supplied the proper credentials for the job and the matter was considered closed. In respect of the second allegation of the appellant’s breach of confidentiality, he reminded her that she ought to adhere to her duties and responsibilities as outlined by the Commissioner and warned her that she should desist from behaviour which had become harmful to her relationship with the Commissioner and the Investigative officer. He recommended that an apology would be in order. On August 17, 2020, the Appellant responded by a detailed letter of apology to all the persons concerned. On November 8, 2020, the Appellant wrote to the Governor explaining why she had apologized.

5. On February 18, 2021, the Commissioner again wrote to the Appellant, this time giving her advance notice that her contract of employment was not going to be extended or renewed. The Appellant wrote to the Bank Manager, Mr Larry Lawrence of FCIB, by letter dated February 23, 2021, alleging that Ms Pratt was engaged in misconduct by signing for her own salary over and above the stipulated amount. On even date, the Commissioner, wrote to the Appellant this time revoking all authority to retrieve information regarding the Commission’s account at the bank and warned that her failure to desist would result in the termination of her services before the completion of the said contract of employment. In response to the Commissioner’s letter, the Appellant wrote an email dated March 25, 2021, to the then Governor, Mr Nigel Dakin, in which she complained of the Commissioner’s abuse of power and threatened to seek legal advice in order to report him to the Foreign Secretary in the U.K and to seek his removal.

6. On May 3, 2021, pursuant to a request for an extension of her employment contract, the Commissioner wrote to the Appellant indicating that because of her numerous infractions and breaches, he was unable to accede to her request and that this was his final correspondence on the matter. On May 4, 2021, the Appellant sent an email to the Commissioner seeking clarification concerning the numerous infractions which he alleged that she had committed. Also on May 4, 2021, the Appellant wrote to the Governor seeking his assistance in ascertaining from the Commissioner what were the numerous breaches and infractions to which the Commissioner referred.

7. On May 5, 2021, the Governor responded by email to the Respondent indicating that the Commissioner had exercised his discretion not to extend her contract of employment and he did not intend to interfere with the exercise of that discretion.

8. On June 30, 2021, pursuant to a request from the Appellant’s attorney at law Mr Courtenay Barnett, the Commissioner wrote setting out details of the breaches committed by the Appellant and which comprised an expansion of those set out in his letter June 2, 2020.

9. On July 29, 2021, the Appellant lodged an official grievance complaint with Ms Pratt, the Acting Commissioner and claimed unfair dismissal and the deprivation of a grievance procedure which automatically made her dismissal unfair.

The Decision of the Tribunal

10. Before the Tribunal, the Appellant claimed that she was victimized for whistle-blowing a suspected crime of fraud. She also claimed unfair dismissal on the ground that she was denied a proper response to her request for a hearing under the Respondent’s grievance procedure. The Respondent claimed that the dismissal was fair because the Appellant was in breach of both the confidentiality clause in her employment contract and her oath of secrecy which were crucial to the work of the Commission. The Appellant was given advanced notice that her contract was not going to be renewed. The Tribunal made the following findings of facts:

1. The Appellant had a contractual duty of confidentiality;
2. The Appellant had sworn an oath of secrecy which prohibited her from revealing the contents of any document of the Commission;
3. There was no protection for whistleblowing. The Appellant’s actions did qualify as whistleblowing nor the applicant, as a whistleblower.
4. The claim of victimization was not made out. Even so, that was a matter for a Magistrates’ Court.
5. The Appellant was bound by the term of mutual trust and confidence implied in every contract of employment.
6. The Appellant's actions in divulging information contrary to her duty of confidentiality and the oath of secrecy destroyed that relationship of trust and confidence.
7. The Respondent decided rather than immediate termination to serve notice that they would not renew the employment contract upon its expiration.
8. The notice was more than sufficient to satisfy the requirements of section 63 (1) (c) of the Employment Ordinance, Chapter 17:08, (EO) and more than was required by the contract.
9. The Tribunal found that the Appellant’s dismissal was not unfair and was not persuaded that the lack of a grievance procedure of the Commission automatically made the dismissal unfair.

The Appeal

The Appellant appealed the decision of the Tribunal by notice dated April 14, 2023.

The Issues

11. There are two main issues for our consideration. Firstly, was the Tribunal correct in deciding that the Appellant’s dismissal was not unfair, and secondly, was the Tribunal correct in deciding that the absence of a grievance procedure did not deprive the Appellant of her redress for perceived unfair treatment supporting her assertion of unfair dismissal.

Held: The appeal is dismissed and the findings of the tribunal are affirmed.

12. There was no dispute that the Appellant was dismissed from her employment with the Respondent as an administrative officer and that notice was given to her of the impending dismissal and non-renewal of her contract of employment.  

Unfair Dismissal: The Duty of Confidentiality and the Oath of Secrecy

13. It is clear that the EO does not specifically contemplate a dismissal for the irretrievable breakdown in an employer-employee relationship as a result of the breach of the duty of trust and confidence or secrecy. However, section 69 (2) (b) of the EO sets out the conduct of an employee as a reason for dismissal. Clause 2.2.3 of the Appellant’s contract of employment sets out the duty of confidentiality in respect of the work of the Commissioner. Clause 8 of the said contract provided for a duty of confidentiality and integrity on the Appellant’s part.

14. The Appellant was also required to sign an oath of secrecy pursuant to section 5 of the Complaints Commission Ordinance as set out in Schedule 2 of the said Ordinance which she signed on September 23, 2019. It was the breach of the duty of confidentiality as set out in the employment contract and the breach of the oath of secrecy for which the Appellant was dismissed.

15. The Appellant complained that she was unaware of the nature of the infractions and the breaches to which the Commissioner referred. Tracing the history of correspondence between the Commissioner and the Appellant, the infractions and breaches were obvious. In the circumstances, I am satisfied that the Respondent had fulfilled the obligations pursuant to section 69(1)(a) of the EO by clearly outlining to the Appellant the reasons for her dismissal. 

The EO: Section 62

16. Section 62 of the EO provides for the giving of warnings to an employee by an employer where the employee commits an offence in breach of his condition of employment or any misconduct. These provisions ensure that an employee who has breached a condition of his employment or is guilty of misconduct is still afforded a fair dismissal procedure, in that he must be given a written warning prior to his dismissal and an opportunity to desist from any misconduct or breach of condition of his employment. If such misconduct continues or he is guilty of a similar offence in the following 6 months, only then it is open to his employer to terminate his employment. The employer is deemed to have waived his right to terminate the employment for misconduct if he fails to do so within a reasonable time after having knowledge of the misconduct.

17. The Appellant received written warnings. The Appellant acknowledged that she had received three written warnings, and by letter of August 17, 2020, she wrote to Mr Astwood as follows, “If these are grounds for the Governor to terminate my contract as I have now breached 3 warnings which is sufficient grounds to terminate my services”.

18. It is clear that both the Commissioner and Mr Astwood of the Governor’s Office complied with section 62 of the EO. The Appellant was in receipt of written warnings on three separate occasions. Although she was entitled to one written warning and subsequent termination if her misconduct continued for 6 months following the written warning, the Commission and the Governor’s Office dealt generously and compassionately with the Appellant. The Appellant’s misconduct was such that the Commission could not reasonably be expected to continue her employment since her misconduct was repetitive. Despite written warnings on June 1 and June 2, 2020, the Appellant went ahead anyway on September 7, 2020 and wrote to Mr Astwood of the Governor’s office complaining about Ms Pratt’s purported fraudulent utterance and deception after the Governor’s office communicated to her that the matter was considered closed. On February 23, 2021, she committed another breach similar in nature. She wrote Mr Larry Lawrence of the FCI Bank accusing Ms Pratt of financial fraud, yet the Appellant’s employment was not terminated and instead, she was given advanced notice that her contract was not going to be renewed nor extended. The Commissioner explained that the advanced notice would give her time to find other employment.

19. Having regard to the above, it is clear that the Commission was mindful of section 62 of the EO and gave appropriate notices to the Appellant in respect of her dismissal. In the circumstances, I can find no merit in the Appellant’s submissions.

Section 69

20. Section 69 of the EO provides that when deciding whether a dismissal of an employee is fair or unfair, the employer must show that it is for a specified reason as set out in subsection 2, or for some other substantial reason (SOSR), sufficient to justify the dismissal. These provisions relate to the fairness of a dismissal and places a burden on the employer to show the reason for the dismissal and to establish either that it was a reason set out under section 69(2) of the EO, or that it was some other substantial reason which would justify the dismissal. Subsection 69 (2)(b) refers to a reason related to the conduct of the employee. The decision whether the dismissal was fair or unfair would depend on the reason shown by the employer and whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The question must be decided in accordance with equity and the substantial merits of the case.

21. Pursuant to section 69(1)(b) of the EO, the reason set out by the Respondent does not specifically fall within section 69(2). There is no provision for dismissal pursuant to an employee’s breach of confidentiality or oath of secrecy, except broadly under section 69(2)(b), which refers to the conduct of an employee. Therefore, this case falls within the dismissal for some other substantial reason of a kind as to justify the dismissal. 

22. The next question for my consideration is whether the reason for her dismissal constituted a substantial reason justifying the dismissal. The Appellant’s contract of employment imposed a duty of confidentiality which she was required to strictly observe. The Tribunal found that the Appellant’s breach of confidentiality was sufficient reason to justify the dismissal. I agree with the Tribunal and I am satisfied that the reason for the Appellant’s dismissal that is, the breach of confidentiality and oath of secrecy on repeated occasions constituted a substantial reason, justifying the dismissal. The Appellant’s conduct was likely to harm the Commission because it had the potential to damage public trust and confidence in the work of the Commission. Confidentiality is “crucial to the business of the Commission”. The public must feel confident that their complaints are treated with the strictest confidence and not be in fear that their matters may be made public by the very Commission from which they seek protection.

23. The next issue to be determined is whether the Respondent was reasonable or unreasonable in treating the breaches as a sufficient reason for dismissing the Appellant. Pursuant to section 69(3), this question must be determined in accordance with equity and the substantial merits of the case. The test to be applied is stated in Polkey v AE Dayton Services Ltd, where it was held that the issue which the Industrial Tribunal had to consider under section 57(3) of the Employment Protection Consolidation Act 1978, (identical in terms to section 69 of the EO), was whether the employer had been reasonable or unreasonable in deciding that his reason for dismissing his employee was a sufficient reason.

24. In Iceland Frozen Foods Ltd v Jones 1983 ICR 17, Browne-Wilkinson J, in delivering the decision of the court, set out the correct approach to be adopted when considering the question at hand. At paragraph 24 he stated inter alia “in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another”. The ‘band or range of reasonable responses’ approach to the issue of reasonableness or unreasonableness of a dismissal as expounded by Browne-Wilkinson J was approved in The Post Office v Foley; HSBC BANK plc (formerly Midland Bank plc) v Madden and remains a good statement of the law.

25. Did the Commissioner act reasonably or unreasonably in treating it as a reason for dismissing the Appellant? In answering this question, the words of section 69(3) should always be foremost in the minds of the Tribunal and the Tribunal must be careful to consider the reasonableness of the Respondent’s conduct and not whether they considered the dismissal to be fair. The Tribunal must also be careful not to substitute its decision as to what was the right course for the employer. The function of the Tribunal was to decide whether, in the particular circumstances of each case, the decision to dismiss fell within the band of reasonable responses which the employer might have adopted. If it does, then the dismissal is fair, if not, then the dismissal is unfair. In this case, the Tribunal found that the relationship of mutual trust and confidence expected between an employer and employee was destroyed.

26. The Appellant’s publication of the nature and contents of the Commissioner’s documents was without the expressed or implied authority and under the oath of secrecy. The Tribunal concluded that the Respondent was not wrong in treating the Appellant’s actions as a sufficient reason for dismissing her. I agree with the Tribunal. Not only did the Appellant repeat her conduct, but she persisted in the breaches and did so even after the written warnings were issued. She seemed bent on pursuing Ms Pratt for reasons best known to herself. Her conduct left the Commissioner with no alternative. In my view, the Tribunal correctly held that the Respondent acted reasonably. Such dismissal was reasonable and therefore the dismissal was fair.

27. In all the circumstances, the Tribunal was correct in reaching the conclusion which it did.

No Grievance Procedure

28. There is no dispute that the Respondent did not put a specific grievance procedure in place as required by the Appellant’s contract of employment. The Tribunal concluded that in all the circumstances of the case, the Appellant accepted the decision of the Governor and confirmed in her evidence that she considered the matter closed. The Tribunal was therefore not persuaded that the absence of any specific grievance procedure in the office of the Complaints Commission automatically made the dismissal unfair.

The Contract of Employment

29. Clause 9.1 of the Appellant’s contract of employment provides as follows, “the administrative officer will be subject to the Commissioner’s policies and procedures and to the provisions of the Employment Ordinance”. Clause 9 of the contract also addresses the issue of termination and provides that employment may be terminated at any time without having or giving any reasons with immediate effect and without compensation. This applies in cases where the employee commits any act of gross misconduct or any other act warranting summary termination at common law, or repeats or continues any other breach of obligations under the agreement. Where the employee engages in conduct which, in the opinion of the Commissioner is likely to cause her continued employment to be detrimental to the interest of the Commission. It was therefore open to the Commissioner to invoke the provisions of Clause 9 but rather opted not to renew the contract upon its expiration.

The Governor’s office

30. The Appellant sought the Governor’s intervention. In her evidence before the Tribunal, she stated that she considered the Governor to be her boss since the Complaints Commission was both a statutory and constitutional body under the authority of the Governor.  The matters were investigated by the Governor’s office and the Executive Director, Mr James Astwood communicated with the Appellant that all the required documents were in order in respect of Ms Pratt.

31. It is clear that the Appellant having recognised that the Commissioner had failed to put any disciplinary rules or procedures in place as specified in her employment contract, she turned to the office of the Governor, whom she considered to be her boss. She asked that the matter be investigated and subjected herself to the authority of the Governor’s office and the decisions of the Governor’s office. Although she complained that “no one investigated and no one interviewed her”, it was obvious that there was no need to do so. The Appellant kept the office of the Governor well-informed in writing of everything that transpired through her numerous communications and fully accepted the decisions of the Governor’s office following them up with the appropriate apologies as recommended. In her response to the Governor on August 17, 2020, she stated as follows, “Again, kindly accept my apologies, I was out of line and if these are grounds to terminate my contract as this would be my 3^rd warning. I take full responsibility”.

32. In the circumstances, and for the reasons set out above, I can find no fault with the findings of the Tribunal. The Appellant was not deprived of a fair procedure in accordance with the principles of natural justice. She called on the Governor to investigate the allegations against her and accepted the decision following them up the recommended apologies.  Accordingly, there is no merit in this ground of appeal.