The former chief executive of the Bermuda Health Council was told that the organisation’s decision to sack her could not be judged as a matter of public law.
Tawanna Wedderburn applied for a judicial review in the Supreme Court, alleging that the termination of her employment last December, was politically motivated.
She took action against the health council, its former chairwoman Alicia Stovell-Washington, Kim Wilson, the Minister of Health, and David Burt, the Premier.
The allegations were vigorously denied during a one-day hearing last month, when Assistant Justice David Kessaram heard arguments on whether Ms Wedderburn’s case involved matters of public law, suitable for a judicial review, or private law, where an alternative legal remedy could be sought.
A written ruling on the preliminary issue was handed down by the judge yesterday.
Mr Justice Kessaram said in the judgment: “I am inclined to find that, if what the applicant alleges is true, she would have a compelling case that the council and the minister acted for improper purposes and in bad faith towards her as CEO of the council.
“But is that enough to give rise to a right of judicial review of the decisions that resulted in her dismissal?”
He found that Ms Wedderburn’s “analysis of the facts leading to her firing” did not fit with the Bermuda Health Council Act 2004.
Mr Justice Kessaram said the former chief executive’s statement that the council had a duty to “recommend” to the health minister that her employment was terminated suggested it was the minister who made the decision. He added: “This does not seem to me to be a correct analysis.”
Mr Justice Kessaram wrote: “What is remarkable about the relief claimed is what is not sought.
“There is no relief sought in the way of damages for wrongful dismissal, or for an order for reinstatement in her position as CEO, or a declaration that her employment continues until properly terminated in accordance with the Act and her contract.
“Damages are sought, not for compensation for loss arising out of any breach of her contract of employment, but against the Premier, the Minister of Health, the chairman of the council and the council for misfeasance in public office, a tort.”
The ruling showed it was agreed that Ms Wedderburn was not a public servant or holder of a public office and that her employment terms were not regulated by statute or regulations.
Mr Justice Kessaram wrote, it was argued on her behalf that there was a public law element to her role, in that there was a statutory requirement for the health minister to approve any decision to terminate her contract.
He added: “It is said that this fact makes the decision to terminate amenable to judicial review. I do not agree.”
The judge noted that he made “no finding as to the lawfulness of the termination” of Ms Wedderburn’s employment.
He said: “It may very well be the case that the decision of the council and the decision of the minister were made in bad faith and for improper purposes.
“Those are issues which, if they are to be decided in these proceedings, can only be decided after hearing the evidence.”
Mr Justice Kessaram found there was no public law element to the termination and that it was “not amenable to judicial review”.
He said in court yesterday that he expected the parties to “collaborate with each other” about how to proceed in terms of the remaining issues in Ms Wedderburn’s claim and adjourned the matter until a later date.
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