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LAW , J.A.
[1] The appellant was employed as an Administrative Assistant by the
respondent University, by a letter dated 4th June, 1968, which stated that
the appointment was probationary and subject, I quote, "to the relevant
Regulations of the College Council".
[2] The principal terms and conditions were summarised on the reverse side.
Paragraph (iv) is of importance in connection with this appeal
"(iv) you will be on probation for a period of one year in the first
instance at the end of which period, subject to your work and conduct being
satisfactory and to your passing any requisite examinations, you will be
eligible for confirmation in your appointment."
[3] In January, 1969, the appellant was granted an increase of salary, or
increment, notwithstanding the provisions of regulation 15(c)(1) of the
relevant Regulations, which lays down that an employee will not be entitled
to an increment until the date of his confirmation.
[4] On the 3rd June, 1969, the appellant's probationary period as defined in
his letter of appointment expired without the appellant having received
notice of any extension of his period of probation, as required by
regulation l5(a) of the relevant Regulations. On the 15th August, 1969, the
appellant received from the Principal of the respondent University a letter
expressing dissatisfaction with his work and purporting to extend his
probationary period until 31stDecember, 1969.
[5] In January, 1970, the appellant received a further increment. On 2ndMay,
1970, the Principal purported to terminate the appellant's probationary
appointment summarily, with payment of one month's salary in lieu of notice,
in accordance with regulation 16
(a) of the relevant Regulations, which empowers the Principal to terminate a
probationary appointment on one month's notice.
[6] The appellant, dissatisfied with his dismissal, complained to the
Commissioner of Labour, who referred the com¬plaint to the Permanent Labour
Tribunal (hereinafter referred to as the Tribunal) as being "an apprehended
Trade Dispute" within the meaning of the Permanent Labour Tribunal Act,
1967.
[7] The Tribunal investigated the matter and gave its decision in a detailed
and carefully reasoned “Report" dated 13th January, 1971. The Tribunal's
main recommendations were that the appellant should be considered as having
been con¬firmed in his appointment, and given three months salary in lieu of
notice, as is appropriate in the case of the dis¬missal of a confirmed
officer.
[8] The Tribunal did not recommend the appellant's re-instatement. The
respondent University accepted the Tribunal's recommendations, and paid the
appellant a further two months salary, which he accepted. Notwithstanding
this, the appellant then sued the respondent University, claiming a
declaration that the purported termination of his appointment was invalid,
re-instatement into his former position, Dud alternatively unspecified
damages for wrongful dismissal.
[9] The respondent University by its defence pleaded, firstly, that the
court had no jurisdiction to entertain the suit as the matters in dispute
had been lawfully disposed of by the Tribunal; secondly, it denied that the
appellant had been confirmed in his appointment; and thirdly, it claimed
that the appellant was lawfully dismissed as a probationary employee.
[10] The learned trial judge held that his jurisdiction to entertain the
suit was not excluded by the proceedings before the Tribunal, and this
holding has not been challenged before us.
[11] He dismissed the suit on the ground that the appellant had failed to
discharge the onus of proving that he had ever been confirmed in his
appointment. This latter finding was strongly attacked before us by Mr.
Lakha. He submitted that the evidence adduced at the trial raised a strong
and unrebutted inference that the appellant had been confirmed in his
appointment.
[12] In particular he relied on the fact that the appellant had received two
annual increments, and that increments are only paid to confirmed officers.
He also relied on the fact that the appellant was retained in his post after
the expiry of his original period of probation, and after the expiry of the
purported extension of that period, indicating that he became a confirmed
officer.
[13] These arguments were also presented to the learned trial judge, who
said
“Reading and re-reading these Regulations, I cannot spell out from thee that
the fact that the plaintiff was kept on after the expiry of the
pro¬bationary period as laid down, and that an increment or increments has
or have been paid, ipso facto establishes that the officer, who was
originally appointed on probation, has in fact been confirmed by the
Principal"
[14] After careful consideration, and without in any way wishing to condone
the dilatory and unbusiness-like methods adopted by the respondent
University in this case, and its disregard of its own Regulations, I am of
the opinion, with respect, that the learned judge came to a correct decision
in this case, and that his judgment should be affirmed. As to the
increments, the Regulations merely say that an employee on probation shall
not be entitled to increments.
[15] This does not prevent increments from being paid to a probationer,
whether by mistake or intentionally, and such payment cannot in my view be
construed as equivalent to confirmation. As to the continued employment of
the appellant after the expiry of his probationary period, it is clear from
paragraph (iv) of the terms and conditions endorsed on the appellant's
letter of appointment, to which I have already made reference, that such
expiry only renders the employee eligible for confirmation, and docs not
involve automatic confirmation.
[16] The appellant in this case has established that he was eligible for
confirmation, but has failed to establish that he was in fact con¬firmed in
his appointment.
[17] It follows from that I have said that in my view this appeal fails.
[18] The respondent University does not ask for costs. I would dismiss this
appeal, and make no order for costs.
DUFFUS, P
[19] I have read and entirely agree with the judgment of Law, J.A., and as
Mustafa, J.A. also agrees, the appeal is dismissed with no order as to
costs.
MUSTAFA, JA
[20] I agree. |
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