Woman to have day in court 17 years after being fired

A former employee of the National Irrigation Commission Ltd (NIC), whose employment was terminated in December 2008, has been given the green light by the Court of Appeal to present evidence in the Supreme Court almost 17 years later.

Karen Thames is taking action against the company for the major depressive disorder she contends that she suffered from the loss of her job.

A ruling by the Master in Chambers in May 2018 had blocked the claimant from amending her claim to seek damages against the NIC for psychological harm.

Thames’ claim is now set for hearing on October 15 and 16 next year, in which she is also seeking damages for breach of contract of employment and wrongful dismissal.

The appellate court ruled last month that the proposed amendment was necessary to assist in determining the real issues in controversy between the parties, despite its lateness. Further, the court found that the respondent, NIC, would not be prejudiced by the amendment, as the appellant had demonstrated that the information she wished permission to include in her supplemental witness statement was already disclosed to the respondent.

ACCUSED OF CONTRACTUAL BREACHES

Thames was first employed by the NIC in 1988 as a personal assistant.

In January 2008, she was appointed to act as director of corporate and legal services/company secretary.

While she was on vacation leave in August 2008, the chief executive officer of NIC wrote to her, advising her of possible disciplinary action regarding contractual breaches on her part in the preparation of contracts for the National Irrigation Development Programme. She was also advised that she was placed on interdiction as per the disciplinary code with effect from August 8, 2008.

Thames gave a written report in August 2008, denying any knowledge of contractual breaches. The chairman of the NIC board informed her, in a letter dated December 2, 2008, that a determination was made in the matter based on her written response. She was also informed that the respondent was ultimately of the view that she was neglectful in respect of her duties and, as such, her contract of employment was terminated, effective December 5, 2008.

A disciplinary hearing was requested by Thames. She also sought the intervention of the Ministry of Agriculture, Fisheries and Mining, which promised, in a letter dated June 1, 2009, to investigate the matter.

There was no resolution in the matter, so Thames applied for and was granted an extension of time by the Supreme Court to apply for a judicial review.

An amended claim form was filed in February 25, 2011, in which Thames sought a declaration that her termination of employment and removal from her post was void. She also sought an order to quash the decision to terminate her employment, as well as compensation from the date of her termination.

The Judicial Review Court refused to grant the declarations and directed that a case management conference should be held at the earliest possible time.

Thames next pursued her claim in the Supreme Court and a case management conference was held on May 30, 2016.

On May 8, 2017, Thames filed an amended notice of application to file supplemental witness statements to include medical report, psychiatric evaluation, future medical care and major depressive disorder as a particular of her injuries, but the Master in Chambers refused the application on May 14, 2018. She was granted leave by Justice Audre Lindo on May 27, 2021 to appeal the Master’s ruling.

APPEALED THE DECISION

The law firm Oswest Senior-Smith & Company, which is representing Thames, highlighted in its written submissions in the Court of Appeal that there was no evidence from the respondent to show why it would be prejudiced or embarrassed by the amendments.

“It was trite law that there was no error or mistake, which if not fraudulent, a court ought not to correct, if it can’t do so without injustice to the other side,” the court was asked to consider.

The submissions outlined that the learned Master was not in a position to make a finding as to whether Thames had a reasonable chance of success in claiming damages for psychological or psychiatric harm. One of the points raised was that there was no evidence or case law provided in support of the Master’s conclusion.

The respondent, in written submissions presented by the law firm Wentworth S. Charles & Company, had asserted that the NIC would be prejudiced due to the late amendment. It was also submitted that in addition to the appellant’s failure to support the application with affidavit evidence, the appellant had failed to satisfy the limb of promptitude.

TOOK HER BY SURPRISE

In its conclusion, the Court of Appeal – comprising its President Justice Patrick Brooks, Justice Paulette Williams and Justice Georgiana Fraser – ruled that the Master erred in refusing to grant the amendment, as the information was already disclosed to the respondent.

The court, in granting permission for Thames to amend her particulars of claim, said she was permitted to rely on her supplemental witness statement at the trial, which is set for October 15 and 16, 2025.

Thames, in her claim filed on June 30, 2016, contends that the decision to terminate her employment took her by surprise and caused her great ignominy and depression and that she had been mentally affected by the trauma she went through.

She further asserted that the decision seriously affected her physical health in that she suffered extensive weight loss, insomnia, frequent headaches, and aggravation of hypertension. She is relying on the psychological report prepared by Dr Terrence Bernard to support her claim.

She is seeking damages for breach of contract of employment and/or wrongful dismissal to include damages equivalent to her net salary for the period which it would have taken for the required procedures to have been observed, and damages for psychological injury.

In its defence, the respondent has denied Thames’ assertions and has put her to specific proof of the allegations. NIC is challenging Thames’ claim that she was entitled to any relief claimed, or that she had suffered injury, loss, or damages, as alleged.

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