Dear Editor,
The raison d’être of a University is always a quest for enlightenment and its purpose is always the creation of epiphanies in people’s minds. Hence we expected that the University would at least attempt to justify the decision made by the Council at its January 8th, 2012 meeting to arbitrarily cancel various employment contracts, following a seriously flawed process that failed to give credence to that decision. Imagine therefore our consternation and dismay when during both rounds of the conciliation talks, the University Administration itself seemed committed to a stance and to actual positions that were both unethical and almost impenetrable in their opaqueness. What is more, the University, in affirming the validity of the aforementioned decision, also managed to impugn the character, judgement and integrity of former Vice-Chancellor Prof. Lawrence Carrington, in his absence to boot; and additionally, to trivialise the authority of the Pro Chancellor, Dr. Prem Misir, who wrote to us on February 10th, 2012, indicating in particular that Mr. Frederick Kissoon’s contract was in fact terminated on “strictly academic considerations.”
At the very outset the University made it clear that it was approaching the conciliation talks in an aloof manner by speaking to us primarily through a (probably highly-paid) consultant, who was however wholly unfamiliar with the ‘enlightenment mandate’ of the University and of the processes, protocols, regulations and general ethos of university organisation and life. The University also made it very clear that as far as it was concerned there was no merit in our concerns, and that it had acted quite properly. Hence we find it necessary to point out that much wrong was done, and that much harm was inflicted on the University, by the Council decision of January 18th. Indeed, it is because of a concern about wrong-doing and serious injury to the University that the unions pressed for conciliation, having concluded that the Council decision was not a mere matter of ‘the law,’ or the individual lecturers per se.
In the first instance, were the Council decision to go unchallenged then a precedent would have been set for any member of the University to be dismissed as long as the University offered them ‘payment in lieu of notice.’ A precedent would have also been set for the Council to now disrupt the delivery of courses for which students have already paid, without making even a pretence of consultation with the Academic Board, when in fact both the letter and the spirit of the UG Acts and Statutes make it clear that it is the Academic Board and not the Council, that has the power to ‘direct and regulate the teaching and the instruction’ within the University. Yet another precedent would have been set for the Council to overturn a ‘strictly academic’ decision of the Principal and Vice Chancellor, and to publicly humiliate him, though this officer is both the Chairperson of the Appointments Committee and the (ex-officio) chairperson of the Academic Board, and therefore is in the best position to make such decisions. Such a precedent is extremely dangerous because it would undermine the authority of the Vice Chancellor’s office in the eyes of the students, staff and faculty of the University, and effectively making it impossible for any other Vice Chancellor to exercise any authority or discretion in managing the academic affairs of the University.
But these (very important) potential precedents aside, we also believe that the University has erred in a number of ways in its January 18th decision, as the University’s advisor/spokesperson himself recognised during the conciliation talks. The particular decision in question came after Council had asked the Appointments Committee, which acts on behalf of the Council in matters of appointments, to declare some fourteen contracts that were approved by the Vice Chancellor ‘null and void,’ because it was the Appointments Committee, and not the Chairman of the Appointments Committee, that could approve appointments on behalf of the Council. Having declared the contracts null and void therefore, the Appointments Committee would then consider and approve various appointments, referring some to the Council itself. In the first instance however, it is impossible for the Appointments Committee, which is subordinate to the Council, to declare “null and void” contracts that were duly and properly executed, having been signed by the Registrar, who is the Secretary of the Council. At any rate, it is only the Council of the University that has the power to “enter into, vary, carry out and terminate contracts on behalf of the University.” Yet the Council attempted to use this silly and farcical procedure to give it some pretext for terminating the contracts that it had, for all practical purposes, itself issued.
The University was therefore forced to concede that the original fourteen contracts were indeed valid and binding on the parties. Invoking the Pro Chancellor’s written confirmation that Council had terminated Mr. Kissoon’s contract in particular on ‘strictly academic considerations,’ the unions then argued that the January 18th termination was done ‘for cause,’ and not just because the Council wanted remind us of how powerful it was.
Moreover, if the Council had a concern about the performance of a lecturer, then it was required by Statute 25 of the UG Act and Statutes to follow a procedure that amounts simply to ‘giving the person an opportunity to be heard.’ As far as the framers of the UG Act and Statutes were concerned, natural justice was important enough for it to be specified in the Act and Statutes. The Act and Statutes even specify further, in outlining the powers of the Council, that while the Council has the power to “dismiss any member of staff of the University,” it must do so “pursuant to the procedures [outlined in Statute 25].”
The University proffered various responses:
Though the Act and Statutes do not distinguish between ‘termination’ and ‘dismissal’ and in fact use the terms interchangeably, the University claimed that the former involves giving notice (or payment in lieu of notice), while the latter occurs on-the-spot and doesn’t require the payment of any benefits. The University argued that as the lecturers were terminated and not dismissed, Statute 25 did not apply, nor for that matter did the Cabinet Decision of June 1998 that re-iterated the salience of due process and natural justice when dismissals were being contemplated.
The University contended that at any rate Statute 25 required natural justice and due process only when the charge was ‘gross misconduct,’ and not when performance was at issue. [The unions pointed out that Statute 25 in fact referred quite generally to cases where a member of the university is ‘unable to perform the functions of his office as might warrant the termination of his employment;’ and that ‘gross misconduct’ by lecturers could only be understood to include failure to perform the duties of a lecturer.]
The termination of the contracts was, the University argued, its way of ‘regularising the contracts’ in order to redress the former Vice Chancellor’s presumption that he could act on behalf of Council in his capacity as Chairperson of the Appointments Committee. And in the particular case of Mr. Frederick Kissoon, the decision to terminate him was done simply because the Council had the power under the terms of the (properly executed but improperly issued!) contract, to do so by paying him in lieu of giving him notice.
And finally, the University argued that in the exercise of the powers allowed under the terms of the employment contracts the University was not required to follow due process and the norms of natural justice, the provisions of the Act and Statutes that de-limited the powers of the Council in the matter of terminations/dismissals notwithstanding.
It was as if the University was saying that the business of the University might be enlightenment but that University administration and governance entailed obfuscatory, arcane and convoluted thinking!
Be that as it may, we believe that our concerns remain valid. Additionally, the University still has to explain why it is that Mr. Kissoon’s contract was terminated with prejudice, while other lecturers’ contracts were terminated without prejudice, in the sense that the University could re-employ the latter but not the former.
The University also has to indicate to us whether the legitimate expectation that Mr. Kissoon would have had, and that we all have, for due process and natural justice to be followed in terminations/dismissals – created by the clear and explicit statement in all the employment contracts issued by the University, that appointments are “subject to the UG Acts and Statutes” – is now something that the University will no longer honour.
As the University has made it clear that it doesn’t have to justify its actions to anyone, at least not in conciliation talks, we look forward to the matter going to arbitration, at which point we shall insist that the University respond to all our concerns including the ‘termination with prejudice’ and ‘legitimate expectation’ ones.
Yours faithfully,
Thomas B. Singh
On Behalf of Operation Rescue UG
