Mervyn Riviere Claimant v Ross University School of Medicine Defendant [ECSC]
| Jurisdiction | Dominica |
| Judge | Thomas, J. [Ag.] |
| Judgment Date | 09 May 2014 |
| Judgment citation (vLex) | [2014] ECSC J0509-1 |
| Court | High Court (Dominica) |
| Docket Number | SUIT NO. DOMHCV2012/0300 |
| Date | 09 May 2014 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
[CIVIL]
SUIT NO. DOMHCV2012/0300
In this action, the claimant, Mervyn Riviere, seeks against the defendant, Ross University School of Medicine, "RUSM", a declaration and damages in these terms:
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1. A Declaration that the Claimant was wrongfully dismissed;
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2. Damages for breach of contract arising from wrongful dismissal;
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3. Damages for breach of duty of trust and respect.
The claimant's case is that by various agreements with the defendant from February 2003 he was first appointed as an Adjunct Professor and later in 2006 promoted to full-time Faculty Member at an annual salary of US$90,000.00 with specific responsibilities.
According to the claimant "the contract agreement in 2003 and thereafter, stipulated that failure to carry out his academic duties and responsibilities at the school according to contract would be considered cause for termination in accordance with the policies and procedures established in the School's Faculty Hand Book."
At paragraph 19 of his statement of claim the averments go towards the termination of the claimant's contract for serious misconduct in accordance with Section 5 of theProtection of Employment Act.1
Other averments relate to the following:
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1. The defendant paid the claimant his salary for the month of April 2012; and
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2. The defendant had not prior to his dismissal issued a written notice of warning to the claimant concerning his alleged misconduct and indicating the consequences of further misconduct on his part.
In the premises the claimant contends that the termination by the defendant was in breach of the rolling contract made between the claimant and the defendant for the period January 1st to December 31st, 2012 and thus constituted a wrongful dismissal. It is contended further that by reason of the wrongful dismissal the claimant has loss and damage. The particulars are:
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a) Salary and benefits payable to the claimant for the period May 1st to December 31st, 2012.
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b) Monies due to the claimant arising from his participation in the defendant's Deferred Compensation Plan during the years of his employment from January 1st, 2003 to April 30th 2012, and for the period of wrongful termination from May 1st to December 2012.
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c) Monies in lieu of 18 days accrued vacation for the period, January 31st to December 31st, 2012.
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d) The sum of US$38,925.00, equivalent to EC$103,151.25, representing earnings from Ross University School of Medicine Deferred Compensation Plan.
Further and/or other relief; and
Costs
[7] Central to the defendant's defence is the contention that the Agreement stated that it was the responsibility of the claimant to participate in those stated activities, among others, 'as required by the Executive Dean and/or the Chair of the Behavioral Science Department and in accordance with the policies established by the Faculty Handbook'.
[8] In furtherance of the defence the defendant identifies certain episodes of conduct attributed to the claimant which are characterized as being "inappropriate, unethical and offensive and led to complaints from students". It is further contended that: "The claimant's conduct in making those statements in class, was, in the reasonable judgment of the defendant unbecoming of a Faculty Member and/or materially injurious to the interests and reputation of the defendant, and amounted to serious misconduct." A further contention is that the claimant's conduct constituted a breach of Section 2 b i F of his employment contract, and as such the termination was lawful.
Accordingly, in response to the claimant's claim that his dismissal was wrongful, the defendant denies the claim and the particulars of damages are also denied.
In his reply the claimant addresses the instances of allegations of misconduct as follows: the alleged reference to psychiatric patients as 'drooling idiots' is denied; the instance about a doctor asking a female student to guide a spectrum into her vagina but using his penis instead, the claimant says it is a true-to-life example used to stress that unethical behavior is not only unethical but also illegal; and the statement regarding medicare patients and autistic children might have been taken entirely out of context and, therefore misunderstood.
Finally, at paragraph 10 of his reply, the claimant denies that any element of his conduct in the employment of the defendant; including the allegations made by the defendant amount to serious misconduct. The claimant also avers that at the trial he will rely on Section 1.4 of the DeVry Inc Employee Handbook and on Sections 5 to 10 of theProtection of Employment Act.
The claimant's evidence is confined to the witness statement of the claimant. And in his evidence he outlines his employment with the defendant from January 2002 continuously to the termination of his contract of employment on April 13, 2012.
The evidence regarding his dismissal begins in March 2012 at which time he planned to attend a conference in the United States. According to the claimant, prior to his departure he was summoned to a departmental meeting and was told that he was under investigation for unethical conduct relating to statements made while teaching. It is his further evidence that the substance of the alleged unethical conduct was not made known to him. Rather, it was suggested that he take administrative leave, which was refused. Further, still, the claimant says he was told to obtain details of the alleged unethical conduct from the school's Head of Human Resources which was done.
The claimant at paragraph 20 of his witness statement gives evidence of being summoned to a meeting with 3 officials of the school at which time "they used all manner of pressure to cause me to resign my position." The witness says he did not resign and was told that if he did not resign within 2 days his employment would be terminated for 'cause'.
Such dismissal came on April 20, 2012 after he refused to resign. It was by letter which stated that the cause of termination was serious misconduct in accordance with section 5 of theProtection of Employment Act2.
The cross-examination of the witness centered on the complaints received from students and the manner in which such complaints were brought to the claimant's attention; the meeting with Ms. Monsanto and Dr. Raskin; the letter of dismissal and the Deferred Compensation Fund.
The defendant's evidence is contained in the witness statements of Gannady Raskin and Yura Monsanto.
In his witness statement, Gannady Raskin says at the time of the claimant's dismissal he held the post of Senior Associate Dean at Ross University School of Medicine.
At paragraph 3 of his witness statement, the witness says that in February 2012 he received a report of a complaint by a student concerning the claimant. According to the witness, the complaint was referred to the Human Resource Director of the defendant.
At paragraph 6 of his witness statement, he says that together with Dr. Abney, he met with the claimant and informed him of the complaint by the student and the fact that the matter was being investigated. The witness also says that at the meeting the claimant was given a choice of accepting administrative leave or instead of taking vacation leave.
At paragraph 7 of his witness statement, the evidence reads:
"On April 11th, 2012 Ms. Yura Monsanto and I met with the Claimant. At that meeting the Claimant was informed that it was determined that his conduct was inappropriate and the defendant intended to terminate his employment. He was offered the option to resign in order to spare him the indignity of a termination. At no time during that meeting was the Claimant pressured or repeatedly called upon to resign. He was merely offered that option, which he rejected."
The cross-examination of Dr. Gannaday Raskin concerned administrative leave and whether the claimant was ordered to take such leave; his responsibility for all academic activity; his powers to put a faculty member on administrative leave.
In her evidence, Yura Monsanto says she is Human Resource Director at Ross University School of Medicine.
The witness gives evidence on the history of the claimant's employment at RSUM, the basis upon which the claimant's employment could be terminated under his contract of employment; the nature of complaints made against the claimant by students; the investigation into the complaints and the meeting of April 11, 2012 with Dr. Raskin, the claimant and herself at which time the claimant was informed of the defendant's intention to terminate his employment for cause; the opportunity given to the claimant to resign his post.
Under cross-examination the witness gave further evidence regarding the power to dismiss and the delegation of such power to the Human Resource Manager; the hearing given to the claimant to confront the allegations; the nature of the Faculty Handbook and the DeVry Code of Conduct which are brought to the attention of all employees; and the claimant's conduct as a Professor of Ethics.
The following issues arise for determination:
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1. Whether the court has jurisdiction under theProtection of Employment Act3 in these proceedings.
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2. Whether the defendant can rely on reports of complaints by students as RUSM without an appearance inpersonam at the hearing leading to the dismissal of the claimant.
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3. Whether the claimant's employment with the defendant was wrongfully terminated.
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4. Whether the claimant is entitled to the reliefs claimed.
Whether the court has jurisdiction under...
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