Unpaid teacher sues CEO in personal capacity

-Loses in small court, but wins on appeal
GRADE One teacher, Lucille Harry, who sued Chief Education Officer (CEO) James Theophilus Thom for withholding 18 days pay due her while on sick leave, was told by a Judge-in-Chambers that she could not legally pursue the claim. She appealed, resulting in the Full Court, comprising Justices Victor Crane,
G.A.S. Van Sertima and Dhan Jhappan, allowing her appeal and remitting her application to the Judge-in Chambers with intimation that he deals with it on the merits. The Respondent CEO was ordered to pay costs to the applicant, Harry. Evidence disclosed that the appellant, who was a teacher employed by the Government of Guyana, applied to the Chief Education Officer for 18 days sick leave  under Regulation  60 (3) (b)  of the Education Code, Chapter 91 [G], which was granted, but without pay. She protested, but to no avail. She then took out an originating summons, naming the Chief Education Officer in his individual capacity as defendant, in which she sought the determination of the question whether the Chief Education Officer or other official of the Ministry of Education has power to withhold her salary for the period during which she was granted leave; and a declaration that she was entitled to salary for the abovementioned period.
In the Court below, the judge, on submissions in limine, refused to entertain the application on the ground that a declaration could not be properly made against the Chief Education Officer in his individual capacity, which would have the effect of involving the Crown’s purse. On appeal by the applicant, the Full Court held that: (1) No judgment can be entered against a Crown servant for any unauthorized act done by him in that capacity, though an action for damages may be maintained against him in his individual capacity;

(2) A question of construction of a regulation arose; and

(3) The question of the deprivation of a fundamental human right was involved in the withholding of salary.

During the hearing, the Full Court had referred to 17 cases. Senior Counsel, Mr. H.D. Hoyte appeared for the appellant, while Mr. Doodnauth Singh, S.C. represented the respondent, Thom. According to Justice Crane, who delivered the judgment of the Full Court, “The appellant took out an originating summons under O. 432, Regulation 2, claiming to be entitled to a legal right depending upon a question of construction of the Education Code, Chapter 91 [G] – particularly r. 60 of the said Code. Her summons sought the determination of the following questions, the first two of which are referred to in the ruling under appeal as the first and second questions:

“(1) Whether the Chief Education or other official of the Ministry of Education has power to withhold the plaintiff’s salary under the said code or otherwise for the period June 28, 1964, to July 15, 1964, after she had applied for leave under reg. 60 (3) (b) and the said leave had been granted under regulation 60 (3) (e) of the said code.

(2) A declaration that the plaintiff is entitled to her salary for the abovementioned period.
(3) Costs.”

On August 4, 1966, a judge made an order in Chambers dismissing her application with costs; he did so on a preliminary point.  Lucille Harry now appeals against that order, on the following grounds:

(1)   The learned Chief Justice erred in law when he held that it would be unconstitutional for the Court to grant the declaration sought by the plaintiff (appellant).

(2)    The learned Chief Justice erred in law and exercised his discretion on a wrong principle in refusing to construe regulation 60 of the
Education Code and to  make the consequential declaration.”

Continuing his judgment, Justice Crane said:
“In her affidavit in support of the originating summons, Lucille Harry affirms her status as a Grade One teacher attached to St. Aloysius Roman Catholic School, New Amsterdam, Berbice;   also that she was in July, 1964,  in the same capacity attached to the New Market Anglican School at No. 64 Village, Corentyne, at a salary  of $210.00 per month.  She was unwell, she says, and so applied in June 1964 , to the Chief Education Officer that she be granted sick leave for the period June 28 to July 15, 1964,  in accordance with regulation 60 (3) (b) of the Education Code, at the same time submitting the necessary medical certificate along with her application. This was approved for the required period, but without pay, for on receiving salary for August, 1964, she observed that 18 days’ pay, representing the period of sick leave granted her, had been deducted.

“A protest to the Chief Education Officer achieved nothing save a letter to the effect that the latter was abiding by his previous decision to grant sick leave without pay.” As Justice Crane observed: “It was in these circumstances that she sought legal advice which culminated in the summons. The rubric shows that the respondent, James Theophilus Thom, is proceeded against in a personal capacity.  In his reply to Harry’s affidavit, Thom declares he is the Chief Education Officer attached to the Ministry of Education and Race Relations.  But while his reply substantially admits the facts in Harry’s affidavit,  including the fact that eighteen days’ sick leave had been granted her, somehow illogically and inconsistently, it would appear,  goes on to allege that he had been informed and verily believes  that the plaintiff absented herself from school from June 29, 1964 , i.e.,  the day after her sick leave commenced without authority or without assigning any reason, though he believes she attended the In-Service Teacher Training Programme at the Skeldon Centre.

“As has been stated, the merits of the application were not explored, and the matter fell in limine on a two-point submission by counsel for the defendant/respondent, Crane said and added.

“It is our respectful opinion that the learned judge misdirected himself in his approach to the matter when he refused Lucille Harry a hearing of her summons on its merits for the reasons he has given.

“It is our considered opinion that the deduction of eighteen days’ pay is prima facie unconstitutional unless made under due process of law.  By an improper exercise of his discretion under the aforesaid regulation the Chief Education Officer could well render the deduction unconstitutional. It is precisely the exercise of that discretion that Harry is seeking a ruling on.

“It is our considered opinion that this appeal must be allowed.  This application must be remitted to a judge in chambers with the intimation that he deals with it on the merits..  The respondent will bear the costs of this appeal, fit for counsel.”

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