An Eastern Caribbean Supreme Court (ECSC) ruling has paved the way for the first ever case from Dominica to go to the Caribbean Court of Justice (CCJ) since the country, through an Act of Parliament, replaced the London-based Privy Council with the CCJ as its final appellate court.
The ECSC on Monday, July 4, 2016, granted leave for the former general manager of the Dominica Broadcasting Corporation (DBC), Mariette Warrington, to file her appeal in the matter of her dismissal, in 2010, as general manager of the state-owned radio station, DBS.
On April 14, 2010, the board terminated Warrington’s employment after she had served for two contracted terms totaling eight years, as general manager, ignoring her request for a renewal of contract and her application for the job after she was ordered to advertise the post. Nevertheless, while the DBS board searched for a general manager, Warrington continued performing her duties as general manager for 16 months and received the same salary and benefits as she did during her last contract. Upon termination, she was paid her salary for April 2010.
Consequently, Warrington took the matter to court claiming damages for breach of agreement and wrongful dismissal.
She argued that at the end of her last contract there was an implied contract and since Clause 6 of the 2004 contract required DBS to pay six months salary and allowances in lieu of notice, sued DBS for $280,000.
However, DBS counter sued, claiming that Warrington owed the station $70,553.39. During the trial, she admitted to owing the station and disclosed that the figure was actually $61,299.75. Judge Brian Cottle, ruled that her termination was not unlawful and ordered her to pay that amount.
In his decision, he expressed the view that the Dominica Broadcasting Corporation Act gave the board no legal authority to appoint a manager. Cottle further stated that the court should not imply that there was a contract between Warrington and DBS and, consequently, there was no issue of a breach of contract.
Warrington then took the matter to the Eastern Caribbean Supreme Court (ECSC). Her appeal centered around two statues that govern the Labour Contracts Act and the Dominica Broadcasting Corporation Act. Her lawyers had asked the court to examine the DBS Act, specifically Section 6 (6) of that Act that requires the Board of Directors to appoint a manager upon the advice of the Prime Minister.
On September 15, 2015, the ECSC dismissed Warrington’s appeal and upheld the decision of High Court Judge Brian Cottle.
The Appeals Court ruled that the Labour Contracts Act was not applicable to that case and “cannot supersede the specific provisions of the Dominica Broadcasting Corporation Act.”
The ECSC judges told Warrington that the Act is “clear and unambiguous” that the Prime Minister shall be consulted for the post of manager.
“In these circumstances, the conduct of the parties does not give rise to implying a fixed term contract as contended by the appellant. The effect of the failure of the respondent to get the advice of the Prime Minister meant that any agreement the respondent entered into for the appointment of a manager would be void and unenforceable. The appellant was therefore only entitled to be paid for the services rendered,” the Judges said.
The Dominica Broadcasting Corporation Act, they said, does not permit the Board to appoint a person of its own choice without first seeking the advice of the Prime Minister.
“The onus was on the respondent to prove that the advice of the Prime Minister was not obtained. However, in view of the evidence that was before the learned judge (Judge Cottle), it was open to him to find that on a balance of probabilities, the Prime Minister had not given advice to the respondent on the appointment of a manager,” the ECSC judges said.
Warrington applied to the ECSC for leave to seek a final resolution of the matter at the CCJ and on Monday, July 4 2016, the ECSC approved her application.
As part of the Order, she is to lodge with the registrar of the court, ten thousand dollars as “securities” within 90 days. She also has 90 days to furnish the registrar a list of the document rulings she proposes to include in the record of appeal.
Upon compliance with those conditions, the registrar will issue her with a certificate of compliance in conformity with the CCJ Rules. Copies of that certificate must then be served on the respondents and the registrar of the CCJ must also be so notified.
The court, meantime, denied her request to “stay the execution” of the counter claim judgment in favour of DBS on the grounds that no appeal was filed on the counter claim.
The Board of DBS had written to Warrington demanding that she pay the monies as ordered by the court.
Warrington’s lawyer, Cara Shillingford, had argued that if execution of this judgment debt is not stayed, “the appellant will be financially ruined…the appellant has good prospects of success on appeal.”
Justice Cottle ruled that the failure of the board to consult with the Prime Minister was “fatal”. The ECSC agreed with him in that regard.
Anthony Astaphan SC, is representing DBS radio in the matter.
It is 6 years since she was fired and this case is not yet settled? Wow! That is a long time.
How can someone who is on contract forced to advertise for a new manager, for the post she holds when the enterprise or herself did not terminate her employment? Never heard of it. It is like getting an employee to train a new employee for that employee’s position who is still employed. Got it?
Some of you are too political and bias. Get out of this political arena. It does not matter who she supports and who support whom. So leave politics out of it. You should do this once and for all if it is not related primarily to politics. Do not assume it is, for it is your speculation as embedded in your mind which is incorrect.
She is a human being, a D/can. What occurred to her appears to be unfair. Based on what I read, she should win the case. Please mark my words. Therefore, let us see, hear/read about it. Hope it does not take too long. I wish her success.
The claimant was clearly employed by the DBS authority, not by the Prime Minister. It is ludicrous for them to argue that since she worked for them, without the express approval of the Prime Minister she was in fact not in their employ. Are they saying that she worked for them, and was paid by them for a period of sixteen months illegally? In my humble opinion there is a prima facie implied contract of employment and Brian Cottle’s original ruling is flawed (…not for the first time!).. I wish her luck.
Marriette, I find your Boom boom getting big papa
It is very interesting to note. The last case from Dominica to go to the Privy Council was in the name of Lennox Linton, Political Leader of the UWP. The first case from Dominica to go to the CCJ is in the name of Maritte Warrington, a staunch supporter of the UWP. Those people like court papa!!!! I hope she gets justice. IF PM Skerrit had kept us with the Privy Council, she would have had to dig deep into her reserves or simply accept the ECSC ruling. PM Skerrit has afforded her the real opportunity to get justice. Leadership matters, really!!
@observer are you a jack ass with two tails ? we live in a civilize society we use the courts because that’s what it is there for.
Man you are really twisted. You mean to say she has to be grateful to Skerrit now for making it possible for her to go to the CCJ? Remember is Roosevelt Skerrit opposing her through his lawyer Astasphan. You are one sick puppy cargon. You should be on stage as a magician.
By taking Dominica to the CCJ “PM Skerrit has afforded her the real opportunity to get justice. Leadership matters, really!! Whilst I do not claim to know the depth and extent of her pockets, if we were still with the Privy Council, the costs would have been different and this might have costed her the opportunity for justice?. You really find something wrong with that? But in case you did not know or chose to forget. Here is a clear case you might wish to munch on. The government of PM James (UWP) agreed to pay the legal fees for the of the Public Service Union in a matter where certain Public officers were penalized for taking strike action against government. the government felt it had a right in what it did. The state lost at both the local court and the Appeals court but was interested in dragging the matter before Privy Council. The government agreed to pay the costs of the union at the Privy Council. They could have stopped after the Appeals Court and accept a lost. They did…
I don’t get this. You knew they were looking for your replacement, they kept you on the job till they found the right person, and you taking them to court? So basically you saying they should’ve have paid you less, but since they did not that automatically put you under contract? You people are the best. You had no better offer so you milked DBS till they terminated you, by that time you made your cabbage, now you even want to go CCJ. Thanks to the PM poor people like us can go for final judgement, had it been with the Privy you could not have afforded that. I wonder what was your views on the CCJ, we know the blues hated it.
8 years experience, can do the job, keep her working, but she was not the right person? Where do you peoples logic come from? Can’t you see this is a political matter? Someone again being penalized because although a democracy, leaders still hold people in slavery chains.
Interesting wonder who signs the contract is it the chairman of the board or the prime minister. It would be interesting to look at precedence what obtained in the pass. I am hard pressed to understand that a person can work as a manager at DBS for so long without the knowledge and sanction of the Prime Minister. I think technicalities are at play here and I dare say based on the fallout of the individual with the administration that we have that situation.
Real possie you are clone of observer same empty comment. But what is real and obvious anything that seem to be good is Skerrit responsible. At the same when people complain that things are bad and then turn around to blame Skerrit you all are the same people who say if it is Skerrit esponsible and to be blamed for everything.
Very interesting case. Very well written, DNO. Personally, I think Warrington’s Attorney erred in her reliance on Chap. 89:04 at the appeal hearing. Had 89:04 included a clause like “This Act shall apply notwithstanding any other law, custom, contract or arrangement whether made before or after the coming into force of this Act…………….”, then Warrington would have a better chance of proving that this Act may have superiority over the DBS Act. In any event, Chap. 89:04 limits the relief to be provided the employee where she proves that the employer violated the Act. The relief is not reinstatement or compensation, but a fine of EC$500 on the employer.
I think a better approach is a case of ultra vires against the Board of Directors of DBS in their personal capacities. Good hunting.
But wait
DBS to pay six months salary and allowances in lieu of notice, sued DBS for $280,000.
However, DBS counter sued, claiming that Warrington owed the station $70,553.39. During the trial, she admitted to owing the station and disclosed that the figure was actually $61,299.75
Let me understand this DBS have money somewhere man. Where people can borrow money, and still expect a quarter million in severance.
Pa pa met
What I doing wrong nuh.
Miss Shillingford i am proud to be associated with you. Your family should be proud, no young lawyer on their own has taken on such big fishes and be successful. You are truly a rising star, keep striving. You are a child of God, i’m sure your daddy must be proud. Stay true to the fight.
Successful? They on their last chance to be successful.
Well done DNO this is the type of Legal work we expect of you. Kudos to this employee . I am absolutely impressed with this thorough presentation which was quite understandable`and accurate. Tim \Admin please tell us who s`he is???
You can not have read the DNO article thoroughly because it clearly states that her name is Mariette Warrington.
DBS and Tony are not genuinely seeking justice they are on a witch hunt. Tony for years has been out to destroy anything and anybody who has a different opinion from that of his labor party and if you do not support, you rather be dead if not red. I pray that the last Court of Appeal will grant justice to Ms. Warrington the former Manager of DBS radiio
A witch hunt? She took them to court. She is the one pursuing appeals. Who is hunting who here? Maybe I have the wrong definition of witch hunt.
if your employer ask you to advertise a job position, even if it’s your job and you did not do as you were told,should they still keep you,this is the same situation with the west bridge project,it was not advertised which you all are kicking against,but it’s all good for you all,you see the double standard,this is why I will never support UWP,everyday you all showing you all true colors
Red herrings all over the place. In my opinion Roosevelt Skerrit was adamant that Cecil should get that post to stop him exposing skeletons in closets. But of course, that is only my opinion……..