The Court of Appeal today heard an appeal from the University of Belize against Dr. Abigail McKay, a former dean of the University who sued several senior officials including former president Dr. Carey Fraser and human resources director Hertha Gentle, who had decided not to extend her employment contract to the full five years she had first been offered. In the Supreme Court, Justice Courtney Abel had agreed to allow judicial review of the decision but UB appealed to get the approval reversed. Senior Counsel Denys Barrow represented UB, and Audrey Matura-Shepherd represented Dr. Abigail McKay. The Court of Appeal officially reversed the leave to bring judicial review that Justice Courtney Abel granted to Dr. McKay. We hear more about their reasons from Matura-Shepherd.
Audrey Matura Shepherd, Attorney for Dr. Abigail McKay: It’s a very important case, not only for my client but for what it means. While the panel of judges has reserved their decision until a further date. The implication of it are several. 1, they are saying that the decision would have been best bounded, I mean the application would have been best bounded in contract. But 2 it brings into question now the fact of the validity of the staff and faculty handbook of the University which is what many of the people rely on because they are saying basically it has no force, this has never been brought in by statue . Although I try to argue that there are cases that show that not everything is by statue and that they are legitimate expectation, clearly if you were in there you were seeing the judge especially Justice Backman was absolutely not for it. He made a clear cut distinction between the contract and Judicial review. So at the end of the day, they’re not saying that she doesn’t have a claim, they’re just saying don’t bring it in public law which is judicial review, which is private law, which is in contract.
The decision is reserved but Matura-Shepherd concedes that her client now has few options.
Audrey Matura Shepherd, Attorney for Dr. Abigail McKay: When you say judicary review you’re asking decisions to be reviewed. Cleary you cannot go that venue. You’d have to look at another venue. My client would go the other venue. Well one of the things that happen is that although she was entitled to another 2 year, the only way it could have been denied is if they had done an adverse evaluation against her and there was never an adverse evaluation. Rather there was always positive evaluations in her favor. So it would have to be a decision she would have to make because she is not out of the time limit to bring the matter under contract but also I think the fact that this matter came before the court and as the judges say it is one of the matters that has great implications, one needs to look at not only the employment of this particular client, but at the employment of everybody presently at the university because if you go through the handbook you will see it makes provision for grievances, for how you employ people, for their tenure, for discipline, everything. And what basically the party on the other side was saying is that the president was acting on his own in certain ways when he decided to terminate her service so it has grave implications and I will be very much interested in seeing what is the final decision that the court will give in writing which they promised by next session and next session is until next year.
From the victorious side, Barrow said that the judge was found to have erred in his handling of the case, though his motivation was clear.
Denys Barrow, Attorney for UB: Claimant brought a claim in what you call Judicial review against the University saying that they should have extended her contract by a further 2 years beyond the 3 years for which she signed. We took the point , the university took the point in the high court that that was a wrong claim to bring that she has a contract for 3 years. If she was dissatisfied with that, she should not have made a 3 year contract. She insisted that she had a right, although the contract doesn’t say so to a 2 year extension. Unfortunately the judge, he went out of his way, as the court of appeal found to try to help her along but it was an erroneous move that the judge did. So the court of appeal has struck down the decision, and said that the claim ought never to been brought in this fashion.
The decision is due in writing by the next session of the Court.