Mervyn Riviere v Ross University School of Medicine
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COMMONWEALTH OF DOMINICA
IN THE HIGH COURT OF JUSTICE
SUIT NO. DOMHCV2012/0300
MERVYN RIVIERE Claimant
ROSS UNIVERSITY SCHOOL OF MEDICINE Defendant
Dr. William Riviere Counsel for the Claimant
Mrs. Hazel Johnson of de Freitas, de Freitas and Johnson Counsel for the Defendant
2014: January 27th, 28th
and February 19th
 THOMAS, J. [Ag.]: In this action, the claimant, Mervyn Riviere, seeks against the defendant, Ross
University School of Medicine, “RUSM”, a declaration and damages in these terms:
1. A Declaration that the Claimant was wrongfully dismissed;
2. Damages for breach of contract arising from wrongful dismissal;
3. Damages for breach of duty of trust and respect.
 The claimant’s case is that by various agreements with the defendant from February 2003 he was
first appointed as an Adjunct Professor and later in 2006 promoted to full-time Faculty Member at
an annual salary of US$90,000.00 with specific responsibilities.
 According to the claimant “the contract agreement in 2003 and thereafter, stipulated that failure to
carry out his academic duties and responsibilities at the school according to contract would be
considered cause for termination in accordance with the policies and procedures established in the
School’s Faculty Hand Book.”
 At paragraph 19 of his statement of claim the averments go towards the termination of the
claimant’s contract for serious misconduct in accordance with Section 5 of the Protection of
Employment Act. 1
 Other averments relate to the following:
1. The defendant paid the claimant his salary for the month of April 2012; and
2. The defendant had not prior to his dismissal issued a written notice of warning to the
claimant concerning his alleged misconduct and indicating the consequences of further
misconduct on his part.
 In the premises the claimant contends that the termination by the defendant was in breach of the
rolling contract made between the claimant and the defendant for the period January 1st to
December 31st, 2012 and thus constituted a wrongful dismissal. It is contended further that by
reason of the wrongful dismissal the claimant has loss and damage. The particulars are:
a) Salary and benefits payable to the claimant for the period May 1st to December 31st, 2012.
b) Monies due to the claimant arising from his participation in the defendant’s Deferred
Compensation Plan during the years of his employment from January 1st, 2003 to April 30th
2012, and for the period of wrongful termination from May 1st to December 2012.
c) Monies in lieu of 18 days accrued vacation for the period, January 31st to December 31st,
d) The sum of US$38,925.00, equivalent to EC$103,151.25, representing earnings from Ross
University School of Medicine Deferred Compensation Plan.
7. Further and/or other relief; and
1 Chap. 89:02 Revised Laws of Dominica
 Central to the defendant’s defence is the contention that the Agreement stated that it was the
responsibility of the claimant to participate in those stated activities, among others, ‘as required by
the Executive Dean and/or the Chair of the Behavioral Science Department and in accordance with
the policies established by the Faculty Handbook’.
 In furtherance of the defence the defendant identifies certain episodes of conduct attributed to the
claimant which are characterized as being “inappropriate, unethical and offensive and led to
complaints from students”. It is further contended that: “The claimant’s conduct in making those
statements in class, was, in the reasonable judgment of the defendant unbecoming of a Faculty
Member and/or materially injurious to the interests and reputation of the defendant, and amounted
to serious misconduct.” A further contention is that the claimant’s conduct constituted a breach of
Section 2 b i F of his employment contract, and as such the termination was lawful.
 Accordingly, in response to the claimant’s claim that his dismissal was wrongful, the defendant
denies the claim and the particulars of damages are also denied.
 In his reply the claimant addresses the instances of allegations of misconduct as follows: the
alleged reference to psychiatric patients as ‘drooling idiots’ is denied; the instance about a doctor
asking a female student to guide a spectrum into her vagina but using his penis instead, the
claimant says it is a true-to-life example used to stress that unethical behavior is not only unethical
but also illegal; and the statement regarding medicare patients and autistic children might have
been taken entirely out of context and, therefore misunderstood.
 Finally, at paragraph 10 of his reply, the claimant denies that any element of his conduct in the
employment of the defendant; including the allegations made by the defendant amount to serious
misconduct. The claimant also avers that at the trial he will rely on Section 1.4 of the DeVry Inc
Employee Handbook and on Sections 5 to 10 of the Protection of Employment Act.
 The claimant’s evidence is confined to the witness statement of the claimant. And in his evidence
he outlines his employment with the defendant from January 2002 continuously to the termination
of his contract of employment on April 13, 2012.
 The evidence regarding his dismissal begins in March 2012 at which time he planned to attend a
conference in the United States. According to the claimant, prior to his departure he was
summoned to a departmental meeting and was told that he was under investigation for unethical
conduct relating to statements made while teaching. It is his further evidence that the substance of
the alleged unethical conduct was not made known to him. Rather, it was suggested that he take
administrative leave, which was refused. Further, still, the claimant says he was told to obtain
details of the alleged unethical conduct from the school’s Head of Human Resources which was
 The claimant at paragraph 20 of his witness statement gives evidence of being summoned to a
meeting with 3 officials of the school at which time “they used all manner of pressure to cause me
to resign my position.” The witness says he did not resign and was told that if he did not resign
within 2 days his employment would be terminated for ‘cause’.
 Such dismissal came on April 20, 2012 after he refused to resign. It was by letter which stated that
the cause of termination was serious misconduct in accordance with section 5 of the Protection of
 The cross-examination of the witness centered on the complaints received from students and the
manner in which such complaints were brought to the claimant’s attention; the meeting with Ms.
Monsanto and Dr. Raskin; the letter of dismissal and the Deferred Compensation Fund.
 The defendant’s evidence is contained in the witness statements of Gannady Raskin and Yura
2 Chap. 89:02 Revised Laws of Dominica
 In his witness statement, Gannady Raskin says at the time of the claimant’s dismissal he held the
post of Senior Associate Dean at Ross University School of Medicine.
 At paragraph 3 of his witness statement, the witness says that in February 2012 he received a
report of a complaint by a student concerning the claimant. According to the witness, the complaint
was referred to the Human Resource Director of the defendant.
 At paragraph 6 of his witness statement, he says that together with Dr. Abney, he met with the
claimant and informed him of the complaint by the student and the fact that the matter was being
investigated. The witness also says that at the meeting the claimant was given a choice of
accepting administrative leave or instead of taking vacation leave.
 At paragraph 7 of his witness statement, the evidence reads:
“On April 11th, 2012 Ms. Yura Monsanto and I met with the Claimant. At that
meeting the Claimant was informed that it was determined that his conduct was
inappropriate and the defendant intended to terminate his employment. He was
offered the option to resign in order to spare him the indignity of a termination. At
no time during that meeting was the Claimant pressured or repeatedly called upon
to resign. He was merely offered that option, which he rejected.”
 The cross-examination of Dr. Gannaday Raskin concerned administrative leave and whether the
claimant was ordered to take such leave; his responsibility for all academic activity; his powers to
put a faculty member on administrative leave.
 In her evidence, Yura Monsanto says she is Human Resource Director at Ross University School
 The witness gives evidence on the history of the claimant’s employment at RSUM, the basis upon
which the claimant’s employment could be terminated under his contract of employment; the nature
of complaints made against the claimant by students; the investigation into the complaints and the
meeting of April 11, 2012 with Dr. Raskin, the claimant and herself at which time the claimant was
informed of the defendant’s intention to terminate his employment for cause; the opportunity given
to the claimant to resign his post.
 Under cross- examination the witness gave further evidence regarding the power to dismiss and
the delegation of such power to the Human Resource Manager; the hearing given to the claimant
to confront the allegations; the nature of the Faculty Handbook and the DeVry Code of Conduct
which are brought to the attention of all employees; and the claimant’s conduct as a Professor of
 The following issues arise for determination:
1. Whether the court has jurisdiction under the Protection of Employment Act3 in these
2. Whether the defendant can rely on reports of complaints by students as RUSM without an
appearance in personam at the hearing leading to the dismissal of the claimant.
3. Whether the claimant’s employment with the defendant was wrongfully terminated.
4. Whether the claimant is entitled to the reliefs claimed.
Issue No. 1
Whether the court has jurisdiction under the Protection of Employment Act4 in these
 In the Faculty Employment Agreement it is stated in Section 14 h that: “Except as otherwise
provided herein, this agreement shall be governed by and construed in accordance with the Laws
of the Commonwealth of Dominica without giving effect to the principle of conflicts of Laws.” As
such, the Protection of Employment Act, may or not be applicable in these circumstances.
 It is accepted and this court has ruled that the Act5 deals, inter alia, with unfair dismissal and a
hearing in this connection before a public authority established by law. The further point is that the
claimant seeks redress for wrongful dismissal which is a creature of common law.
3 Chap. 89:02 Revised Laws of Dominica
5 Op. Cit
 Accordingly, the court restates the rule that in this context the court is confined solely to issues of
wrongful dismissal, and as such in this context the court has no jurisdiction under the Protection
of Employment Act.
Issue No. 2
Whether the defendant can rely on reports of complaints by students at RUSM without an
appearance in personam at the hearing leading to the dismissal of the claimant.
 This issue is of critical importance to the issue and as such some detailed examination becomes
 At paragraphs 17 and 18 of his statement of claim the following averments are made: prior to the
departure for Miami, the claimant was summoned to a departmental meeting and told he was
under investigation for unethical conduct relating to statements he made while teaching; the
substance of the alleged unethical conduct was not made known to the claimant, instead it was
suggested to the claimant that he should take administrative leave; the suggestion was refused; it
was further suggested that while in Miami he should obtain the specifics from the school’s Head of
Human Resources; on the claimant’s return to Dominica, the claimant was summoned to a
meeting by the persons in administrative authority6 where all manner of pressure was used to
cause the claimant to resign; the persons at the meeting threatened to terminate his employment
for cause if he did not resign in two days; by letter dated April 20, 2012 the claimant was informed
by the defendant that his employment had been terminated for cause with effect from April 13,
2012; the stated cause was ‘serious misconduct’ in accordance with Section 5 of the Protection
of Employment Act; the acts constituting such misconduct were alleged to be the claimant’s
behavior in class.
 The defendant in its defence, at paragraphs 17 to 19 pleads the following: the claimant was not
summoned to a meeting and the substance of the alleged conduct was not made known to him; it
is denied that pressure was put on the claimant to resign; at paragraph 19 examples of the conduct
relating to a class held on 8 February, 2012 are pleaded with the contention that the claimant’s
conduct in making the statements in class was in the reasonable judgment of the defendant
6 Being Human Resource Director, Acting Chair of the Department of Behavioral Sciences and the Senior Associate
unbecoming of a Faculty Member and/or materially injurious to the interests and reputation of the
defendant and amounted to serious misconduct.
 At paragraph 20 of the said defence it is pleaded that the claimant was invited to a meeting where
he was informed of the complaint and that the matter was being investigated; the claimant agreed
to contact and speak to Mrs. Anne Bergen-Taylor on the matter on his trip to Florida, which was
done on April 2, 2012; the claimant was again invited to a meeting where the matter was again
discussed with him; the claimant dismissed the complaints as misunderstandings by the students;
the claimant was offered the option to resign and was informed that if he did not resign his services
would be terminated; the claimant refused to resign and by letter dated April 20, 2012 the
claimant’s employment was terminated.
 There are no submissions on behalf of the defendant, but the claimant has a number of
submissions including the following:
“6. The allegations were not put in writing by the students said to have been affected.
Rather, they were stated in correspondence by one employee of the Defendant to
another. Further, the supposed student complaints were not identified, including
by name; two students were said to have complained. (Core Bundle, pp. 48-49).
7. The reason given by the witness YURA MONSANTO on re-examination was that
students were “afraid of reprisals”.
11. The Claimant requested by letter dated 22nd March 2010 that a meeting be called
to enable him to completely thrash out all the allegations in the presence of the
alleged complaining students.(Core Bundle, p. 50)The Defendants did not accede
to this request.
18. The Claimant’s testimony in response to the said allegations was not confronted
by counter-evidence of the Defendant, including documentary evidence as
requested by the Claimant (Judge’s Bundle No. 3, p. 195).”
 It will be recalled that at paragraph 22 of his statement of claim the following is pleaded: “ The
Defendant had not prior to his dismissal issued a written notice or warning to the Claimant
concerning his alleged misconduct and indicating the consequences of further misconduct on his
 The court accepts the foregoing pleadings as being supported by the evidence on both sides.
Further the evidence in this regard begins with an email7from Barbara Harwell dated February 19,
2010 to Davendra Sharma and copied to Mary Taylor. The subject is “Dr. Riviere”.
 The email depicts instances of the claimant’s conduct as reported by students. And when the
matter arose again in 2012, the evidence which the court accepts is that the claimant was told to
get details from Mrs. Taylor in Florida despite the fact that the primary recipient was Davendra
Sharma. More than that, the reports had been made more than two years earlier.
 In reality then, the route by which the claimant obtained verbal details of the allegations is through
the Director of Human Resources in Florida and then through certain senior administrative
personnel. As such it is not difficult to accept the claimant’s contention that he was not given the
allegations in writing.
 But beyond the foregoing, it is reasonable to infer that the claimant was not able to confront the
students on their allegations. With that said the reason advanced by Yura Monsanto that the
students were afraid of reprisals in turn raises three issues: Firstly, the witness was not asked how
she obtained this information. Secondly, that there is no evidence that the witness had any
dealings with the students in this regard. Thirdly, the matter of reprisals, if credible, could have
been dealt with by RUSM given the extent of its operations.8
 The fact that Dr. Raskin and Yura Monsanto gave evidence of their interpretation of what the
claimant allegedly told students cannot have any merit as the defendant’s case relates to
allegations by students, which Dr. Raskin and Ms. Monsanto, on the evidence are not. Nor is the
defendant’s case that the claimant was incompetent as Ms. Yura Monsanto contends.
 The failure to provide a written statement of the allegations coupled with the absence of the
alleging students leads naturally to the matter of the critical importance of common fairness to
confront one’s accuser: be it a court of law, a tribunal or a University concerned with rights,
obligations, or discipline. Indeed, H.W.R.Wade and C. F. Forsyth, Administrative Law, make the
7 Core Bundle of documents, p.p. 45‐49
8 Mrs. Mary Taylor is Director of Human Resources, Ross University South Florida Program Office, See: Core Bundle
of Documents, p. 54
“The courts have in general held that academic disciplinary proceedings require
the observance of the principles of natural justice; but equally they have refused to
apply unduly strict standards, provided that the proceedings are substantially fair.”9
 It is therefore the determination of the court that the defendant cannot rely on reports of complaints
by students who did not appear in personam at any of the hearings, the alleged complaints were
not put in writing which rendered the proceedings entirely unfair and contrary to law.
 But if it is that the court has misguided itself on the question of the reports by students, which is the
defendant’s entire case; it must now consider the next issue of wrongful termination.
Issue No. 3
Whether the claimant’s employment with the defendant was wrongfully terminated.
 There is no dispute that the claimant, by virtue of the Faculty Employment Agreement executed on
21st November, 2007 between the claimant and Ross University School of Medicine was employed
as Faculty Member. The claimant was attached to the Department of Behavioral Sciences and
 The Agreement contains a number of provisions, some of which are immediately relevant: These
are: Term and Termination, Base Salary, Other Employment Benefits
Miscellaneous, including Governing Law.
 It is also not in dispute that by letter dated April 20, 2012 the claimant was informed of the
termination of his employment with RUSM effective April 13, 2012 for cause per Section (2 b i F) of
his contract of employment and for serious misconduct in accordance with Section 5 of the
Protection of Employment Act.
9 9th ed., at page 545
Section 2 b i. F
 Under the heading Termination for Cause, Section 2 b i. F says this:
“i. For the purposes of this Agreement, “Cause” shall mean:
F. Conduct by the Faculty Member that, in the reasonable judgment of
RUSM, is either unbecoming a faculty member of RUSM or materially
injurious to the interests or reputation of RUSM.
ii. Upon the occurrence of any event of cause, RUSM shall have the right to
terminate this Agreement for Cause by sending written notice to Faculty Member
and the Faculty Member’s employment shall immediately terminate. In such
event, the Faculty Member shall receive all earned but unpaid Base Salary to the
date of termination.”
 The claimant’s case is that the determination of his employment by the defendant was in breach of
the contract between them and, as such his dismissal wrongful. Reliance is placed on Section 1.4
of the DeVry Inc Employee Handbook, January 2007 and the goals it sets for employees. On the
other hand, the defendant says the contract of employment of the claimant provided for his
immediate termination for cause. According to the express terms of the contract “Cause” includes
conduct by the claimant which in the reasonable judgment of the University is either unbecoming of
him or which is materially injurious to the reputation of the University.
 The submissions on behalf of the defendant conclude as follows:
“ We submit that having regard to the undisputed evidence of Ms. Monsanto and in
all the circumstances of this case, having regard to the nature of the Defendant’s
business of training doctors and of the position held by the Claimant, it was
reasonable for the university to find that in its judgment the Claimant’s conduct
was unbecoming of a faculty member and injurious to the reputation of the school.
We respectfully submit that the Claimant’s conduct amounted to a serious breach
of contract, was inconsistent with the due and faithful discharge of his duties and
sufficiently weighty to warrant summary dismissal.”
Reasoning and conclusion
 It has already been determined that the Protection of Employment Act is not applicable to this
case. However, a number of cases on summary dismissal and serious misconduct are also cited
to the court.
 The basic rule on summary dismissal is that in any contract of service it can be determined upon
reasonable notice.10 But in this case, by virtue of Section 2 b i F of the Agreement, a contract may
be determined “immediately” once cause, as defined, exists.
 It has already been determined that because of a number of reasons the defendant could not rely
on reports of the complaints from students plus the students did not appear at any hearing so that
the claimant could question them- a breach of common fairness. And since the cause was sought
to be derived from the students’ reports which the court found were nugatory, the cause does not
exist for the purposes of the said Section 2 b i F of the Agreement. But the claimant was dismissed
retroactively11, which is not contemplated by Section 2 b i F of the Agreement or the Agreement as
a whole, without cause which would render the dismissal wrongful. And as noted before, the
opinions of Dr. Raskin and Ms. Yura Monsanto are irrelevant as the case the claimant faced was
based entirely on the complaints from students.12 This reasoning rests on a rule enunciated by our
Court of Appeal13 which says that no party can enlarge its pleaded case by way of submissions
and, by extension evidence.
 Wrongful dismissal normally attracts damages which are measured by the period of reasonable
notice that is appropriate in the circumstances14. In this case summary dismissal is permissible but
there must be cause, but there is none. In all the circumstances having regard to:
a) The fact that the defendant through Dr. Paul C. Abney, Associate Professor, Acting Chair
of Behavioral Services accepted the claimant’s retirement as of December 31, 2012;15
b) The claimant’s “merit increase for the performance period ending June 30 2010”;16
c) The “Thanks and Appreciation” from Sandra Edmee, on departing 4th Semester,17
The court determines that the usual measure of damages must be the salary and benefits the
claimant would have earned up to December 31, 2012, in accordance with the contract, less the
10 See: Kenrick Ambo v Dominica Air and Seaports Authority, Suit No. DOMHCV2010/0297, at paras. 113 and 114
11 The termination letter is dated April 20, 2012 but the termination took effect from April 13, 2012.
12 See: Core Bundle of Documents, pp. 48, 49 & 54
13 See: Jacqui Quinn Leandro v. Dean Jonas, HCVAP2/018‐020 per Rawlings CJ
14 Kenrick Ambo v Dominica Air and Seaports Authority, Suit No. DOMHCV2010/0297. See: A.I. Ogus, The Law of
Damages, p. 283 at seq.
15 Core Bundle of Documents p. 53
16 Op. Cit, p. 52
17 Op. Cit, p. 47
amount paid to him on termination. This would put the claimant in the position he would be in but
for the breach. By implication, the court does not accept the submission on behalf of the defendant
that damages should not exceed six months salary.
Issue No. 4
Whether the claimant is entitled to the reliefs claimed.
 The reliefs sought by the claimant have already been identified and must now be dealt with
a) Salary and benefits payable to the claimant for the period May 1st to December 2012.
This has already been determined in the claimant’s favour.
b) Monies due to the claimant arising from his participation in the defendant’s Deferred
Pension Plan during the years of his employment from January 1st 2003 to April 30, 2012
and for the period of wrongful termination from May 1st to December 2012.
d) The sum of US$38,925.00 equivalent to EC$103,151.25 representing earnings from Ross
University School of Medicine Deferred Compensation Plan.
 In this connection the court accepts the evidence that these matters are handled by a separate
legal entity. That entity is not a party to these proceedings and hence the question of the court’s
lack of jurisdiction prevails.
Damages for breach of trust and confidence
 This head of damages is not new as it is well established. However, as with other heads of
damages the supporting evidence must be adduced.
 Learned counsel for the claimant cites the authorities of Bliss v South East Thames Regional
Health Authority18 and Woods v. W. M. Car Services Limited19 and then tenders the following
“The Defendant’s veto of the Claimant’s participation in the aforementioned
Bioethics Planning Conference in the U.S.A., combined with attempts by the
Defendant’s employees to force the Claimant to resign, had the effect of harming
18  I. C.R. 700
19 (1982) I.C.R. 693
relations between the parties and causing the Claimant to lose the confidence he
had placed in the Defendant.
Accordingly, it is submitted that the Defendant breached the duty of trust, respect
and confidence it owed to the Claimant by virtue of its Employment Agreement
with the Claimant.”
 Learned counsel for the defendant has cited the case of Cecillia Deterville v. Foster & Ince
Cruise Services20 in support of her opposition to the award. In particular the following reasoning
“ [E]ven if the Claimant was able to prove the allegation of breach of trust and
confidence she would not be able to prove consequential loss beyond the ordinary
payment of pay in lieu of notice. She is not able to prove any loss from stigma
resulting from the employer’s breach of trust and confidence nor the manner of
dismissal as a result of the breach of trust and confidence term of her contract.
In my view the Claimant has failed to prove any unduly harsh treatment by the
employer or any consequential loss other than that which flows from loss of
 Learned counsel for the defendant submits, based on the authority cited that the claimant has not
provided evidence as to any loss suffered beyond the normal loss resulting from his loss of
employment that would allows the court to make an award in his favour.
 The court agrees with the submissions on behalf of the defendant and rules accordingly that the
claimant has not satisfied the court in terms of evidence to show loss suffered.
 The claimant is entitled to prescribed costs based on the total damages awarded.
 IT IS HEREBY ORDERED AND DECLARED as follows:
 The court has no jurisdiction under the Protection of Employment Act given the fact that
the claimant is seeking redress from wrongful dismissal at common law.
 The defendant cannot rely on the reports of complaints by students at Ross University
School of Medicine because:
(a) The reports were sent to several persons by persons other than the students, before
the claimant was informed orally,
(b) The claimant was never given a written statement of the complaints prior to his
(c) The fear of reprisals by students cannot be an issue given the extended operation of
Ross University School of Medicine in Florida.
 While the defendant has power to terminate immediately for cause, in the claimant’s case
the defendant lacked cause within the meaning of Section 2 b i F of the Faculty
Employment Agreement plus the termination was retroactive which is not provided for in
the said section or in the Agreement as a whole.
 The claimant is entitled to salary and benefits payable for the period May to December
 The evidence establishes that the Ross University Deferred Pension Plan is administered
by a separate legal entity which is not a party to these proceedings and as such this court
has no jurisdiction to consider the reliefs sough in this connection.
 The claimant has failed to adduce evidence to show that he suffered damages as a result
of breach of trust and confidence.
 The claimant is entitled to prescribed costs based on the total award of damages.
Errol L. Thomas
High Court Judge [Ag]