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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> King v. University Of St Andrews [2005] ScotCS CSIH_43 (03 June 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_43.html
Cite as: [2005] CSIH 43, 2006 SCLR 46, [2005] ScotCS CSIH_43
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King v. University Of St Andrews [2005] ScotCS CSIH_43 (03 June 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Hamilton Lady Paton Sir David Edward
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[2005CSIH43] A832/01 OPINION OF THE COURT delivered by LORD HAMILTON in the cause PETER KING (AP) Pursuer and Reclaimer; against UNIVERSITY COURT OF THE UNIVERSITY OF ST. ANDREWS Defenders and Respondents: _______ |
Act: Napier; Balfour & Manson (Blackadders, Dundee) (Pursuer and Reclaimer)
Alt: Truscott; Simpson & Marwick (Defenders and Respondents)
3 June 2005
The contract of employment
[1] By an agreement in writing executed on 13 March 1997 the pursuer entered into a contract of employment with the defenders. His appointment was as Assistant Principal/Director of External Relations. Clause 3(a) of the agreement provided:The proceedings within the University
[2] The pursuer entered on the duties of his employment but in the course of a few months concerns were expressed in some quarters about his performance of them. At a meeting held on 8 May 1998 the defenders set up a panel ("the hearing panel") to investigate certain charges brought against the pursuer and "to reach a conclusion in the matter". The hearing panel comprised three persons, each an Assessor on the University Court. The procedures adopted for the hearing of the charges were agreed with the solicitor representing the pursuer. These included the furnishing of witness statements by certain persons and the hearing of oral testimony from certain witnesses. The hearing took place on 15 June with a continuation on 3 August 1998. The case against the pursuer was presented by the University Secretary. The pursuer was represented throughout by his solicitor. [3] By letter dated 5 August 1998 the pursuer was notified of the decision of the hearing panel. It was to the effect that the pursuer's contract should be terminated on the grounds of conduct and capability and that upon three months' notice. Enclosed with that letter was a formal report by the hearing panel on its investigation. Intimation was given that the pursuer had a right of appeal to the University Court against the hearing panel's decision. [4] The pursuer exercised that right of appeal. On the invitation of the pursuer's solicitor the appeal was dealt with by submissions in writing. An appeal panel (appointed by the University Court and comprising two persons who had had no prior involvement in the matter), having reviewed the whole material placed before it and re-examined each of the charges directed against the pursuer, upheld the view of the hearing panel, "its findings being that the charges against Mr King amount to a course of conduct when taken in the round warrants summary termination of employment with the University" (sic). Its reasoning, concluding with these findings, was contained in a report dated 9 October 1998. By letter dated 13 October 1998 intimation was given to the pursuer that his employment with the University would expire on 5 November 1998. With that letter was enclosed a copy of the report dated 9 October.The present action
[5] Thereafter the pursuer raised the present action in which he seeks damages against the University Court on the ground of breach of contract. His case on record proceeded upon two grounds, first, an alleged breach of Clause 4 and, second, an alleged breach of a duty of "trust and respect" said to have been implied by law into his contract of employment. With respect to the alleged breach of Clause 4, the pursuer, under reference to the findings of the appeal panel, avers:-The submissions of parties
[9] Mr Napier for the pursuer submitted that, having regard to the terms of Clause 4, the defenders, if they were to advance a relevant defence to the action, must in their pleadings offer to prove (1) that, as a matter of substance, there was good cause for termination of the pursuer's appointment, shown by reference to his conduct, and (2) that that good cause had in fact been relied on by the defenders as the basis for their decision to terminate the appointment. The defenders were not offering such proof. It was plain from the opening words of their stated defence that all they were offering to prove was that good cause had been shown to the satisfaction of the hearing panel. The circumstance that the hearing panel (or indeed the defenders themselves) had been satisfied that there was good cause was irrelevant to the basic issue of whether there was in fact good cause - a matter which the defenders, if they were to have a relevant defence, must offer to prove to the satisfaction of the court. The Lord Ordinary had erred in concluding that the defenders were entitled to terminate the pursuer's appointment if they satisfied themselves that there was good cause. The purpose of the word "shown" in Clause 4 was to elide the common law rule that an employer, in a case of wrongful dismissal, could rely on a circumstance not known to him at the time of dismissal (see Miller - Industrial Law in Scotland pages 401-2; Boston Deep Sea Fishing and Ice Co. Ltd. v Ansell (1888) 39 Ch. Div. 339); under this contract the defenders could rely only on circumstances known to them at the time of dismissal. The word "shown" gave rise to an additional obligation, namely, that the "cause", after due investigation, be demonstrated to the employee. As a first step, however, the employers had to prove, by adducing before the court evidence going to the pursuer's conduct or other relevant circumstances relied on, that good cause for dismissal had in fact existed. It was accepted that Clause 4 was not exhaustive of the circumstances in which the defenders might terminate the contract before its prescribed term; for example, gross misconduct might justify summary termination without notice. It was also accepted that Clause 4 was not confined to conduct on the part of the employee; a redundancy situation or other circumstances affecting the position of the University might constitute good cause for termination. However, Clause 4 clearly placed restrictions on the circumstances in which the defenders could terminate the appointment on three months' notice. It was for the court to examine, on the basis of evidence led, the circumstances claimed to constitute the cause for termination relied on and to evaluate whether that amounted to good cause. Reference was made to Wilson v Racher [1974] I.C.R. 428 (a summary dismissal case). Cases of wrongful dismissal were to be distinguished from cases of unfair dismissal - where the issue was whether the employer reasonably believed that the ground for dismissal had been made out. In the present case, where the defenders were seeking to rely on an exception entitling them to terminate the appointment early, the onus was on them to prove before the court that they were in fact so entitled. The situation in relation to onus was analogous to that in cases of summary dismissal for gross misconduct. If the defenders' defence was that "good cause" was constituted not by the pursuer's conduct itself but by the event of the hearing panel having reached certain conclusions, such a case would require to be made specific - which it was not. If such a case were to go to inquiry, it would be appropriate to reserve the pursuer's pleas to the relevancy of the defences. There was also a question as to whether the decision to dismiss had in the event been taken by the hearing panel rather than by the defenders and, if by the panel, whether power to do so had been duly delegated to it. That was another ground for preserving the pursuer's preliminary pleas if inquiry were to be allowed. [10] Mr Truscott for the defenders submitted that the reclaiming motion should be refused. In the events which had happened (namely, the pursuer's declinature to seek to amend his pleadings to specify his grounds of complaint) the appropriate course for this court to take was now to dismiss the action. It was not disputed that it was for the court to determine whether or not there had been a breach of contract. That, subject to relevant pleadings, depended on whether on the facts emerging at any proof breach of contract had been proved. Reference was made to Ridge v Baldwin [1964] AC 40, per Lord Reid at page 65. Natural justice might require there to be a hearing before any decision to dismiss was taken (Lloyd v McMahon [1987] AC 625, per Lord Bridge of Harwich at page 702G-H). In the present case the use of the word "shown" (together possibly with the senior position held by the pursuer with the defenders) might well import that there should, in circumstances such as the present, be an inquiry, involving participation by the employee, before any decision was taken in respect of termination of his appointment. If an issue were raised as to the procedural fairness of such an inquiry, it would be necessary to address that issue. Such an issue had indeed been raised and the defenders' pleadings had appropriately addressed it. They had set out in detail the whole history, including by reference and incorporation the reports of the hearing panel and of the appeal panel. The incorporation of these reports (which set forth the full basis, including the factual conclusions, on which these panels had proceeded) laid a sufficient basis in defence of this action unless and until the pursuer by averment identified the respect or respects in which the conclusions of the panels, factual or evaluative, were disputed. Had the pursuer done so, the defenders would have been put in a position in which they could respond to any criticisms advanced. In the present state of the parties' pleadings, while it was accepted that the defenders could not lead of new direct evidence of the pursuer's conduct and performance, neither could the pursuer lead or cross-examine witnesses on these matters. The pursuer having departed from his complaints about procedural matters and having failed to specify any complaint on a matter of substance, his action was irrelevant and should now be dismissed. In response to an enquiry by the court as to the possible origins of the phraseology of Clause 4, Mr Truscott suggested that the words used may have been based on a style for appointment of senior staff in English universities. Reference was made to Thomas v University of Bradford [1987] A.C. 795, it being recognised however that the issues arising in that case did not arise in the present.Discussion
[11] Perusal of the Lord Ordinary's Opinion suggests that the argument presented by the defenders to him was to the effect that, as a matter of construction of Clause 4, all that the defenders had to aver (and if challenged to prove) in relation to the merits of the termination was that good cause had been shown to them as employers (see in particular pages 29D-30C of the Reclaiming Print) - that is, insofar as concerned the merits of the ground for termination, that was a matter exclusively for the defenders to determine. The formulation of the defenders' opening averments quoted above tends, at least if read in isolation, to suggest a contention to that effect. It is that argument on construction which the Lord Ordinary appears to have accepted. [12] Before us, however, the defenders' argument was different. It was essentially concerned with an issue of relevancy and of fair notice by way of pleading. Mr Truscott recognised that, in a case such as the present, the role of the court would be more extensive than that envisaged in the argument apparently presented in the Outer House. For example, if the pursuer had in his pleadings specified some matter of primary fact upon which the hearing panel had made a finding or some inference which it had drawn and had identified the basis on which any such matter was put in issue, the court might then require to hear evidence on the issues so raised and reach its own conclusions on them. But, it was contended, the pursuer was not entitled in the circumstances of this case to an inquiry upon the bald assertion that the defenders did not have good cause to terminate his contract. [13] It is necessary to address this pleading issue on the parties' averments as they now stand. In the course of the hearing of the reclaiming motion Mr Napier indicated a willingness to amend the pursuer's pleadings to formalise his departure, intimated to the Lord Ordinary, from the case based on an implied duty of trust and confidence. Mr Truscott indicated a willingness to respond to any such amendment. A Minute of Amendment and Answers to it have now been lodged. In the interlocutor disposing of this reclaiming motion we shall allow the parties' pleadings to be amended in terms thereof. The effect of those amendments is that the whole issues raised by the pursuer as to the fairness of the procedures adopted and followed are no long pleaded complaints. The sole ground of action relied on is an alleged breach of Clause 4, that being based on the unelaborated averment referred to in paragraph [5] above. [14] The defenders set forth in their pleadings the history of what charges were presented against the pursuer and what conclusions, after an inquiry which is no longer challenged on the ground of procedural unfairness, were reached upon them. The pursuer, with the benefit of legal representation, was fully participant in that inquiry and is thus familiar not only with its conclusions but with the evidence heard by it. He has also had notice, in terms of the two reports intimated to him, of the bases upon which the panels arrived at their respective conclusions. [15] In this action the pursuer claims that, in terminating his appointment as they did, the defenders acted in breach of contract - in particularly that they were not entitled to terminate his employment under Clause 4 as, he contends, "good cause" had not been shown. While the existence or otherwise of good cause is a matter which, if relevantly put in issue, falls to be determined by the court on an objective basis, it does not follow, in our view, that the defenders, in order to state a relevant defence, must offer to prove de novo the primary facts which at the inquiry were held to have been established. The true issue is the validity, judged objectively, of the defenders' decision to terminate the appointment. They have set out the grounds, in terms of factual findings and evaluative inferences, on which, they say, their decision proceeded. There is nothing on the face of these grounds which demonstrates that that decision was perverse - nor was it suggested to us that that was so. In the circumstances of this case, in the absence of any response by the pursuer, with due specification, as to why the grounds relied on did not constitute "good cause", the defenders have, in our view, set forth a relevant defence. [16] In some actions based on an allegedly wrongful dismissal from employment it may be necessary for the employer to set forth and to prove as a matter of substance the basis on which the dismissal is sought to be justified. That will be particularly so where the employee neither knows nor has the means of knowing, or of knowing sufficiently, the basis for his dismissal. That may also be so where the employer seeks in subsequent proceedings to rely upon a ground or grounds not known at the time of the dismissal. In the present case, however, no such difficulty is presented to the pursuer, who is aware in detail of the grounds of the defenders' decision, to which grounds the defenders are, by virtue of the terms of Clause 4, confined. In these circumstances we are satisfied that the defenders' pleadings are relevant and sufficiently specific. [17] We are also satisfied that in the circumstances the pursuer's pleadings are irrelevant to support the remedy he seeks. It is he who brings this action and alleges that the defenders acted in breach of contract by purportedly terminating his appointment under Clause 4 in circumstances where they were not entitled to do so. In the absence of any specific challenge to the findings and conclusions of the inquiry, on the basis of which the decision to terminate was ex facie made, no relevant issue for determination by the court is raised by him. [18] In these circumstances it is unnecessary to deal with various subsidiary questions which were raised in the course of argument. It may also be noted that, rightly it seems, no issue is raised with respect to the form of process used. The present case concerns contractual rights and obligations, as between employer and employee, and is thus not amenable to judicial review (West v Secretary of State for Scotland 1992 SC 385 at page 413). Procedure by ordinary action is therefore appropriate. However, the essential question is whether the pursuer has set forth a relevant and specific challenge to the contractual validity of the defenders' decision to terminate his appointment on the grounds averred by them.Disposal
[19] In the whole circumstances we shall accordingly, having allowed the amendment referred to in paragraph [13] above, refuse the reclaiming motion and grant the defenders' motion to dismiss the action.