Boufoy-Bastick v The University of the West Indies (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 08 June 2015 |
| Neutral Citation | [2015] UKPC 27 |
| Date | 08 June 2015 |
| Docket Number | Appeal No 0068 of 2014 |
| Court | Privy Council |
[2015] UKPC 27
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Lord Hodge
Appeal No 0068 of 2014
Privy Council
From the Court of Appeal of Jamaica
Appellant
Martin Griffiths QC Robert-Jan Temmink
(Instructed by Fox Williams LLP)
Respondent
Christopher Kelman
(Instructed by Myers Fletcher & Gordon)
Heard on 30 April 2015
(gives the opinion of the Board)
Dr Boufoy-Bastick ("Dr Bastick") was a senior lecturer in the Department of Education and Psychology at the University of the West Indies. He attained the age of 65 on 7 June 2007 and so was required to retire on 31 August 2007. Under the university's rules he is entitled to supplementary pension benefits only if, immediately prior to retirement, he had completed ten years of continuous service with the university. Dr Bastick claims an entitlement to those benefits and the university disputes it. The university contends that his service with it began on 6 October 1997 and therefore that, albeit by only 36 days, it fell short of ten years. Dr Bastick has two contentions. The first is that his service began on 11 August 1997 and so continued for more than ten years. The second, upon which, at any rate before the Board, he attaches greater weight, is that, even if his service began only on 6 October 1997, he nevertheless completed ten years of service within the meaning of the rule. Thus, according to this second contention, a year in the context of this rule does not have to amount to 365 days.
On 18 November 2011 Beckford J, sitting in the Supreme Court, upheld Dr Bastick's first contention and declared that he was entitled to the benefits. But on 31 July 2013, by a majority, the Court of Appeal allowed the university's appeal and set aside the declaration made by Beckford J, for reasons which it gave on 4 October 2013. In the majority were Morrison and Brooks JJA. Panton P, President of the Court, dissented: he agreed with Beckford J that Dr Bastick's first contention was valid. Dr Bastick now appeals to the Board.
In April 1997 Dr Bastick was a senior lecturer in education and psychology at the University of the South Pacific in Fiji. By letter dated 27 April 1997 to the University of the West Indies ("the university"), he applied for appointment to the vacant position of senior lecturer in the psychology of education there. He attached a lengthy CV and said that he would be able to take up the appointment on 1 September 1997.
Enclosed with a letter from the university to Dr Bastick dated 4 June 1997, which he received in Fiji on 15 July 1997, was the university's formal offer to him of appointment to the vacant position. In the letter the university wrote:
"The effective date for the commencement of your appointment will be the day you assume duties. If you are unable to determine that date when signing the copy of your offer [to indicate your acceptance], you may leave it blank and send us the necessary information later when travel arrangements have been made."
Dr Bastick did not sign the copy of that offer. Instead he sought variation of its terms. The result was a revised offer which the university set out in 11 numbered paragraphs of a letter dated 30 July 1997 and sent to him in Fiji. Under the words "I accept appointment on the terms set out above", Dr Bastick appended his signature on a copy of the letter dated 30 July; he dated it 11 August 1997; and, under cover of a letter also dated 11 August 1997, he returned it to the university, which received it on 14 August 1997. So the letter dated 30 July 1997 represents the initial contract between the parties.
Of the 11 paragraphs in the letter dated 30 July 1997, six are relevant.
Paragraph 2 provided that "the appointment is for the period [BLANK] to August 31, 2000 in the first instance" but that it was terminable by six months' notice on either side. The university's decision not to insert the starting-date of the period was as foreshadowed in its letter dated 4 June 1997. Nor did Dr Bastick insert a date when he signed and returned a copy of the later letter. In his covering letter dated 11 August 1997 he wrote:
"You will notice that the starting date has been left blank. I will be commencing duties in October and will let you know the exact date as soon as the travel arrangements have been made."
Paragraph 3 provided that the appointment was subject to the university's rules.
Paragraph 5 identified Dr Bastick's salary and stated "your incremental date is September 1 and you will receive an increment in 1998".
Paragraph 6 stated that Dr Bastick would be required to comply with the conditions of the Federated Superannuation Scheme for Universities ("the FSSU"); that he would contribute 5% of his salary to it and that the university would contribute the equivalent of 10% of it.
Paragraph 9 provided that the university would pay for Dr Bastick and his family to make the initial journey from Fiji to Jamaica and that it would make a specified contribution to the cost of transporting their household and personal effects.
Paragraph 10 provided that the university would make similar payments on the termination of Dr Bastick's appointment but that the payments would not be made if Dr Bastick were, by notice, to terminate the appointment before the end of the first year of service; and that the payments would be reduced by a specified proportion if he were to do so before the end of his second year of service and by a lesser specified proportion if he were to do so before the end of his third year of service.
By letter dated 21 August 1997 sent by fax from Fiji, Dr Bastick informed the university that he and his family would leave Fiji on 27 August 1997 for a short holiday and to visit universities in Europe; that they would travel from Paris to Jamaica on 6 October 1997; and that the head of educational studies should be advised that he would be available from that date onwards.
Dr Bastick duly arrived in Jamaica with his family on 6 October 1997. He went straight to the university campus and, apparently on that very day, he began to teach. In prior weeks he had done the work preparatory for the teaching. The university has never suggested that, by virtue of his arrival on 6 October 1997, Dr Bastick failed to conduct all the teaching, to attend all the meetings and to discharge all the other functions, which the contract required of him during the academic year 1997/1998. The university's academic year begins on 1 September and ends on 31 August and the long vacation, which appears to run from 11 June to 31 August, therefore falls within its academic year.
The university paid Dr Bastick's salary with effect from a date in October 1997, probably 6 October but possibly 1 October.
When, following Dr Bastick's retirement in 2007 and the emergence of the present dispute, the university produced the copy of its letter dated 30 July 1997 which he had countersigned and sent back to it, Dr Bastick noted that, at some stage, someone in the university had by hand inserted the date 6 October 1997 into the space which had been left blank. In that regard Dr Bastick does not have cause for complaint: for the terms of his covering letter dated 11 August 1997, set out in para 7 above, had expressly contemplated the insertion into it of the precise date in October 1997 when he would arrive in Jamaica.
In 2000 the university extended Dr Bastick's appointment for a further three years and in 2003 it extended his appointment indefinitely, subject, as before, to his compulsory retirement at age 65 and to six months' notice on either side.
Clauses 23 to 33 of the university's rules, incorporated into its contract with Dr Bastick by paragraph 3 of the letter dated 30 July 1997, are entitled "Superannuation". Clauses 23 to 25 address contributions to the FSSU, which is an international money-purchase pension scheme for university...
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