Julius Corbette v National Commercial Bank of Dominica
|Lord Rodger of Earlsferry
|14 July 2009
| UKPC 32
|Appeal No 41 of 2008
|14 July 2009
 UKPC 32
Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Sir Jonathan Parker
[Delivered by Lord Rodger of Earlsferry]
In 1998, in exercise of his power under section 9(1) of the National Commercial Bank of Dominica Act the Minister responsible for Finance ("the Minister") appointed the appellant, Mr Julius Corbette, to be the General Manager of the Bank. It is common ground that the statutory power of appointment carries with it, by implication, the power to terminate the appointment.
Section 5(2)(c) provides for the General Manager to be ex officio one of the 8 members of the Board of Directors ("the Directors"). He is the chief executive officer of the Bank and, subject to the general policy decisions of the Directors, is responsible for the management, administration, direction and control of the business of the Bank. He has authority inter alia to perform all matters which are not specifically reserved to be done by the Directors, but he is answerable to the Directors for his acts and decisions.
In July 1998 Mr Corbette entered into a contract of employment with the Bank as General Manager for 5 years from 1 July 1998. In terms of the contract he expressly undertook that he would "act in administrative and managerial matters according to the instructions and directions given to him by the Bank through its Board."
In February 2000 a new government was elected and, following the election, 5 of the Directors, including the chairman, offered their resignations and were replaced by people chosen by the new Minister. Mr Milton Lawrence was appointed as the new chairman.
Without going into matters in any detail, it is fair to say that relations between the new chairman and Mr Corbette were not easy. Criticisms were made of some aspects of Mr Corbette's work as General Manager. Eventually, on 4 April 2001 an unofficial meeting of the Directors was convened in Mr Corbette's absence. The directors who were present agreed that Mr Corbette's employment could not be allowed to continue and they decided that he should be asked to resign.
This decision was communicated to Mr Corbette at a meeting of the Directors on 6 April 2001. He was invited to consider resigning. Later that day the Minister contacted him and told him that, in view of his lack of support among the Directors, the best option would be for him to resign. Having considered the position, Mr Corbette decided not to resign.
On 18 April Mr Lawrence circulated a memorandum to the Directors, giving alleged reasons why Mr Corbette's employment should be terminated. That same day the Directors met and, with Mr Corbette abstaining, agreed to recommend to the Minister that Mr Corbette's contract of employment should be terminated.
On the same day, on behalf of the Directors, the chairman wrote to the Minister setting out a list of alleged failings on Mr Corbette's part which were said to show that he had neglected or refused to perform his duties as General Manager and had neglected or refused to comply with instructions or directions from the Directors. The Directors recommended that the Minister should, accordingly, terminate his employment forthwith in exercise of the power of dismissal in clause 5 of Mr Corbette's contract of employment which provided:
If the Person Engaged shall at anytime after the signing hereof neglect or refuse or from any cause other than ill-health not caused by his own conduct as provided in Clause 4 become unable to perform any of his duties or to comply with any instruction or direction, or shall disclose any information respecting matters of the Bank to any unauthorized person or shall be guilty of serious misconduct, the Bank may terminate his engagement forthwith and thereupon all rights and advantages reserved to him by this Agreement shall cease."
On 19 April the Minister wrote to Mr Corbette telling him that he had been suspended from his position as General Manager and giving him until 10.30 am the following day to show why his employment should not be terminated. In the event, at Mr Corbette's request, this deadline was extended until 23 April. On that date Mr Corbette sent the Minister a letter setting out his response to the allegations in the chairman's letter to the Minister.
On 29 May the Minister invited Mr Corbette to a meeting at which he handed him a letter, stating that he had not found his response to be a sufficient answer to the allegations against him. In accordance with the Directors' recommendation and "in accordance with the provisions of clause 5 of your Employment Agreement", the Minister terminated Mr Corbettte's employment as General Manager with effect from 29 May 2001.
On 23 July 2001 Mr Corbette began proceedings in the High Court for wrongful termination of his contract of employment. The proceedings were brought against the Bank, the Minister and the Attorney General. The claim was heard by Lewis S Hunte J (Ag), a lawyer who had been brought in specially from the British Virgin Islands because of the sensitivity, in a small community like Dominica, of the action involving the government.
The hearing lasted for ten days and on 14 April 2006 the judge gave judgment in favour of Mr Corbette: he held that he had been wrongfully dismissed and that the Bank and the Minister were jointly and severally liable for the wrongful dismissal. Damages were to be assessed by a judge or by the Master. He dismissed the claim against the Attorney General.
The Bank and the Minister appealed. At a case management conference in advance of the hearing of the appeal counsel for Mr Corbette conceded that the Minister had not been a proper party to the claim and that the judgment against him should be set aside. This was duly done, with the result that the Bank is now the only defendant to the action.
On 15 January 2007 the Court of Appeal (Gordon QC, Barrow SC and Rawlins JJA) allowed the Bank's appeal. On 10 July 2008 the Board granted Mr Corbette special leave to appeal.
It would be fair to say that both Ms Proops, who appeared for Mr Corbette, and Mr Astaphan SC, who appeared for the Bank, acknowledged that they faced difficulties - Ms Proops in seeking to argue that the judgment of the trial judge should be upheld, Mr Astaphan in seeking to argue that the Court of Appeal had applied the correct legal approach to wrongful dismissal or that, in any event, the Court of Appeal had been entitled to reverse the trial judge on the facts. Each of them had, accordingly, a fallback position that, if the appeal were allowed but their primary argument were rejected, the Board should remit the case to the High Court to be reheard by a different judge. Since that is what the Board has decided should happen and there will require to be a fresh hearing, the Board will avoid expressing any views on disputed matters of fact.
Usually, a trial judge's findings of fact will be difficult for an appellant to challenge since the judge saw and heard the witnesses and, in this respect, is much better placed to assess their credibility and reliability than an appeal court. Unusually, however, in this case the Bank was able to point to a fundamental, and frankly astonishing, error which the trial judge made.
As the Board has already explained, on 18 April 2001 the chairman wrote a letter to the Minister setting out the grounds on which the Directors recommended that Mr Corbette's employment should be terminated. That letter was an exhibit at the trial. Also, of course, available to the judge at the trial was the Bank's defence to the action. At para...
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Round Walker Claimant v The Grenada Hotel Ltd (Trading as R Grenadian) Defendant [ECSC]
...employment, while a wrongful dismissal claim asserts contractual rights. See the judgment of the Privy Council in Corbette v National Commercial Bank of Dominica  UKPC 32. 7 The gravamen of the claimant's complaint as set out in the Statement of Claim, is that his termination violate......