Ombudsman Justice Winston Moore has advised the University of Guyana (UG) that based on legal advice, former lecturer Freddie Kissoon was wrongly dismissed in January 2012 and as such should be compensated.
“This office has been advised that Mr. Kissoon was wrongfully dismissed, his dismissal being in breach of statute 25 of the University of Guyana Statutes which provides for notice and a hearing, as pre-conditions for dismissal”, Justice Moore said in a letter to UG Registrar Vincent Alexander.
The letter which is dated December 22, 2014 states that “In the circumstances Mr. Kissoon is entitled to compensation from the University”.
Alexander when contacted this morning for a comment said that he no longer holds the Registrar position and by the time the letter arrived deputy registrar Dr. Theo Velloza had already taken over that responsibility.
Dr. Velloza later told Stabroek News that he has received the letter. He said that it has to be discussed with the UG Vice Chancellor and this has not been done as yet.
The dismissal of Kissoon who is a Kaieteur News columnist, in January 2012 sparked protests at the university which caused the cancellation of classes and a sit-in by staffers for several weeks. Calls for him to be rehired were ignored.
The university had held firm that the dismissal came because of poor performance. Kissoon had been teaching at the University for 26 years before he was sacked.
Kissoon today described the decision as being “profound”. He told Stabroek News that there are two dimensions to this story that ought to be brought out. He said the first is that the Chancellor at the time, Professor Compton Bourne issued a directive to Alexander not to ”invite me to a meeting of a Board that I was a legal member of…The minutes showed that he issued a directive that I should not be invited”. He expressed a belief that that in itself was illegal.
The second point he said, is that it is not only his salary that was lost but also his daughter’s chance at a free university education. “When UG terminated my contract I had to find money for my daughter’s education for three years…After ten years at the university your kid is allowed to attend university free of cost. I had 26 years. With the loss of the job I had to carry her through”, he explained.
According to Kissoon, the university minus the council never dismissed him. “There was no problem with me. There was never no complaint about me. What is important to note is that the Council endorses dismissals and endorses appointments. So appointments and dismissals come from the university to the council. This was one of the rarest cases in the history of the University in which the Council itself dismissed….a lecturer without any vibes or waves or connections from the university itself’, he stressed.
Asked what prompted him to make a complaint to the Ombudsman, Kissoon said that legal minds and the appointment of an Ombudsman had some influence on him. He said that he was repeatedly pushed to sue the university but was deterred by the length of time it would take for the matter to be heard in the court. “I might be dead and gone…you talking about another 15 to 20 years”, he said adding that he felt that taking such a course of action was a waste of time and he felt that his days could be better spent serving Guyana. “No one has faith in the judicial system given the backlog of cases”, he noted.
He said that with the appointment of an Ombudsman early last year and given the circumstances under which he was dismissed, he felt that it was a good case for the Ombudsman. He said that he subsequently took all his documents to the Ombudsman.
When asked if he is confident that he will be compensated by the university, Kissoon responded that he lacks the confidence that he will compensated under the present government.
“I don’t think I am gonna get any money from the University of Guyana based on the present system of governance. It puts me in an… insidious position that if this government changes to ask the university for money because in that case you would have a government that was not responsible for putting me in the predicament that I am in and as such I would be morally hard-pressed to ask a new government to compensate me”.
He said that it will be foolish for him to think that a “government that hates me so much would put money in my hand”.
With regards to taking private action against the university, Kissoon told Stabroek News that now that a pronouncement has been made he may approach a few lawyers for legal advice. ‘It all comes back to the same thing. If the case comes up in another 10 years, it’s a very democratic government that would be in at that time and I will have to ask that democratic government for money, so I am in a no win situation”, he stressed.
Based on the information reaching Stabroek News, Justice Moore arrived at this position after correspondence with Senior Counsel (SC) Miles Fitzpatrick and advice sought from the Fraser, Housty and Yearwood law firm.
Copies of Kissoon’s letter of appointment dated August 30, 2011; termination letter dated January 23, 2012; Kissoon’s letter to the University; minutes of the Extraordinary Council meeting held on January 18, 2012 and Statutes of the University revised as of August 22, 2013 were reviewed by both.
The law firm after quoting various sections of the Constitution and the University’s Statutes based its conclusion of wrongful dismissal on Section 25 of the University Statutes. This section deals with disciplinary action.
According to the law firm “Statute 25 is pellucid”, in that if the Council has reasonable cause to believe that any staff member may be guilty of grave misconduct or is unable to perform the functions as might warrant the termination of his employment, the Council shall give the staff member notice of termination in writing; at the request of that person or the council within a period of 14 days, the Council must make arrangements for a special committee to investigate charges and “afford the staff member an opportunity of being heard on his own behalf and to be allowed legal representation at the hearing of the Special Committee and that termination may occur once the Council after reviewing the report of the committee is satisfied.
It was noted that the minutes of the Extraordinary Council meeting held on January 18, 2012 gave “very little indication as to the motivation for the early termination of Mr. Kissoon’s temporary employment with the University”. It was pointed out that it would appear that members of the Council opined that his research profile was unimpressive and that his works were not of any academic claim; this leading to the rescinding of his contract.
The law firm said too that there was nothing in the minutes to indicate that Kissoon may have been guilty of grave misconduct or unable to perform his functions as lecturer, which would warrant termination.
“The contract of employment did not contain any impositions or requirements regarding Mr. Kissoon’s research profile or research works… In these circumstances it appears that the University Council’s dismissal was without reasonable and probable cause and accordingly, in breach of the implied term of trust and confidence. If this is indeed the case damages would be at large”, the Law firm stated before exploring whether Kissoon ought to have been dismissed without cause upon payment in lieu of notice.
It was noted that in the present case, Kissoon would be entitled to damages assessed based on total emoluments for the period during which the hearing procedure might reasonably have been expected to be concluded, plus at least three months’ salary and housing allowances, as provided for in the letter of appointment dated August 30, 2011.
“If it is that the dismissal was indeed arbitrary and in breach of the implied term of trust and confidence, a court if called upon would also want to consider making an award in respect of damages at large”, the law firm said.
Fitzpatrick in his correspondence with the Ombudsman dated September 19, 2014 opined that the alleged failure to invite Kissoon to respond to the reasons put forth for his early dismissal and provisions in the University Statutes, justified further enquiry but only if the Ombudsman was satisfied that taking legal action would not have been a reasonable option for Kissoon.
Fitzpatrick in giving his thoughts based on the relevant legislation and documents sent to him, noted that while the constitution provides that the Ombudsman investigate injustice by designated public bodies, Article 192 (3) states that he “shall not investigate any action in respect of which the complainant has or had a remedy by way of proceedings in a court or access to an independent and impartial tribunal other than a court providing that the Ombudsman may nevertheless conduct an investigation notwithstanding that the complainant has or had a remedy by way of proceeding in a court if satisfied that in the particular circumstances it is not reasonable to expect him to take or to have taken such proceedings and he shall not be precluded from investigation by reason only that it is open to the complainant to apply to the High Court for redress under Article 153(1)”.
The senior counsel indicated that before an investigation is launched it must be first ascertained whether Kissoon took the matter to court or sought legal advice regarding whether he had a right of action in damages for wrongful dismissal.
“On a general law relating to this matter, I believe that …the Statutory status of the University, the provision in Section 6 of the Act barring any political test being imposed on any member of the University in order to entitle him to occupy any position in or on its staff…and the provisions of Statute 25 (Discipline) paragraph 1 (“staff on UA scale”) which may have applied even by analogy, to Mr. Kissoon’s matter and the alleged failure to invite Mr. Kissoon to attend and/or to give a response to particular reasons which may have been advanced for his early dismissal, justify further enquiry provided that you are persuaded that in the circumstances it would not have been reasonable for Mr. Kissoon to take legal action”, Fitzpatrick concluded.
