Divirgilio v American University of the Caribbean; Nagi v American University of the Caribbean

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Byron, J.
• Judgment Date: 25 November 1982
• Neutral Citation: MS 1983 HC 5
• Docket Number: Nos.56 and 59 of 1982
• Date: 25 November 1982

Divirgilio

and

American University of the Caribbean

Nagi

and

American University of the Caribbean

Byron, J.

Nos.56 and 59 of 1982

High Court

Industrial Law - Contract of employment — Termination — Wrongful dismissal

Held: The conduct of the two plaintiffs was incompatible with the faithful discharge of their duties to A.U.C. and that the transactions into which they had entered with other members of the faculty and students at the A.U.C. were such that their personal interest had to conflict with their duty as servants to A.U.C. That it would have been injurious to A.U.C. to have retained them in its employment so that the dismissal was justified. Claim dismissed.

Facts: These were two claims for wrongful dismissal by the plaintiffs as professor and assistant professors against the employer A.U.C.

Appearances:

Mr. John S. Weekes and Mr. David S. Brandt for the plaintiffs.

Mr. John C. Kelsick for the defendant.

Byron, J.

1 On 28 ^th April 1982, the plaintiff Dr. Divirgilio filed a specially endorsed writ against the American University of the Caribbean hereinafter referred to as A.U.C. In his claim he alleged that he was employed as Professor by contracts in writing from year to year, the last of which was dated 16 ^th March, 1982 for the period 11 ^th May, 1982 to 10 ^th May, 1983, yet the A.U.C. on 20 ^th April, 1982 without notice dismissed him as a result of which he claimed damages and $9,498.63 being 3 weeks salary plus 14 working days accumulated leave.

2 On 18 ^th May, 1982, the other plaintiff Dr. Nagi filed a specially endorsed writ against the A.U.C. He alleged that he was employed as an Assistant Professor and Acting Associate Dean by contracts in writing from year to year the last of which was dated 16 ^th March for the period 11 ^th May 1982 to 10 ^th May 1983 yet the A.U.C. dismissed him while he was on vacation as a result of which he claimed the cost of a return trip to Canada being $2,4000.00, damage and $6,994.29 being wages due.

3 The A.U.C. defended both claims in similar terms and alleged that both Dr. Divirgilio and Dr. Nagi were guilty of disloyalty and gross misconduct, in that they wrongfully incited students attending the A.U.C. to terminate such attendance and to enrol as students at a medical school established or to be established by them under the name University of health Sciences, Antigua School of Medicine at the Halcyon Reef, Mamora Bay, Antigua, and that the A.U.C. were justified in summarily terminating their employment. The A.U.C. counterclaim against each of them for $500,000.00 because, it alleged that by reason of the misconduct of Dr. Divirgilio and Dr. Nagi denied the misconduct alleged.

4 These cases were consolidated by order of the court on the 23 ^rd of July 1982.

5 At the end of the trial counsel for the A.U.C. conceded quite rightly that no evidence had been led which could support the counterclaim against Dr. Divirgilio and Dr. Nagi. The counterclaims are therefore dismissed.

The facts I found were as follows:–

6 The A.U.C. School of Medicine was incorporated with Government's approval in Montserrat in 1978. The Government gave it certain fiscal incentives, which included exemption from import duty on building material and a 15-year holiday from the payment of income tax. At all material times Dr. Paul Tien was the founder and President of the A.U.C.

7 While the physical premises were being constructed the A.U.C. advertised itself as a Medical School and started to operate in Cincinnati, Ohio, U.S.A. In May 1979 while the A.U.C. was operating in Cincinnati, both Dr. Divirgilio and Dr. Nagi were employed. Dr. Divirgilio was employed as Professor of the School of Medicine and Dean of Medicine Sciences having full responsibility over all matters relating to the faculty administration, staff, curriculum and student and or reporting to Dr. Tien on a weekly basis. Dr. Nagi was employed as Assistant Professor in Neuro Anatomy and Medicine.

8 Dr. Divirgilio presented a very impressive curriculum vitae. In addition to his academic career he was a Medical Doctor and had been teaching at medical institutions since 1955. He claimed authorship of or a share in the authorship of 73 publications and 3 textbooks and referred to awards that he had received.

9 Dr Tien is not medical doctor. He has a Ph. D Degree. Dr. Divirgilio developed a very intense dislike and contempt for Dr. Tien both personally and as President of the AUC almost from the very beginning. This led him to levy very serious criticisms against him. Even when he was in court and giving evidence on oath he made many serious allegation against Dr. Tien and in the most extravagant language. Dr. Divirgilio accused him being tyrannical, oppressive and abusive to the students and faculty, of lying and deception, of suffering form pathological paranoia, of sexual harassment of being dishonest in his dealing with students money, of having harsh and silly academic policies for financial reasons. He said “there has never been any happiness at AUC never…it was suggested to Dr. Tien that he should add a floor to his building and live up there and never come out and let the academics be run by academicians.” Under cross-examination it turned out that the criticisms, which Dr. Divirgilio made, were unreasonable and unfounded. In many cases what he said was untrue and he knew it was untrue, and in many cases he based his criticisms on inadequate sources and on information, which he did not investigate although he had access to the proper sources of information and admitted on several occasion that he did not know whether they were true or false. My impression of his evidence on the whole was that he could not be completely relied upon as a fair and truthful witness.

10 In any event Dr. Divirgilio and Dr. Nagi became close friends although it does not appear that Dr. Nagi harboured and animosity to Dr. Tien because he said in evidence “I never had any complaints against Dr. Tien's treatment of me, faculty members of students prior to my dismissal on 27 ^th April, 1982.

11 There were reasons why the opening of the campus on Montserrat was regarded as an urgent requirement and Dr. Tien scheduled the opening of the AUC in Montserrat for 15 ^th January 1980. Although Dr. Divirgilio was the Dean of the school he apparently became involved in quite an issue as to whether the schedule could be met. He said that the faculty had charged him to investigate this issue. He said that the faculty had charged him to investigate this issue. In giving his evidence on this subject Dr. Divirgilio said that he spoke to Dr. Tien on 3 occasions and each time with “his usual lying and deceiving smile he said everything on time.” He also said that Dr. Tien invited the students to come down to Montserrat on the pretext that he had everything ready. When he was cross examined however he admitted that a member of the Faculty, Dr. Watson and a student actually came to Montserrat and took photographs of the work in progress and showed these photographs to the Faculty and student body back in Cincinnati, so that the people who came down to Montserrat that a fairly accurate idea of the state of the accommodations. Despite all of this when they arrived in Montserrat, Dr. Divirgilio bitterly criticised Dr. Tien because the buildings were not completely ready and publicly complained about the unsatisfactory conditions.

12 On 17 ^th March 1980 the government of Montserrat passed into law the Universities and Colleges (Licensing and Control) Ordinance 1980. This act does not make any specific reference to AUC or to medical schools. It applies to all institutions of higher education at the tertiary level and above which awards degrees at the conclusion of its courses. This act provided for the licensing of such institutions subject to certain conditions one of which being the payment of licence fee. The act provided as well for the issue of student permits and the payment of fees by full time student at such institutions who did not belong to Montserrat. The Governor in Council was given power to grant concessions and impose additional obligations. The institutions were required to file certain returns and to allow for inspection by the relevant Government Ministries. The Act also provided for the constitution of a Higher Education Advisory Board to advice monitor academic operations, advise on educational policies, disciplinary problems, and examinations and to hear appeals from students who have been dismissed and either to confirm the dismissal or to recommend reinstatement of the student.

13 After the Act was passed, the government wrote AUC about the legislation and Dr. Tien applied for exemption of the AUC from the licence fee and for the waiver of the student permit fees. He showed Dr. Divirgilio the correspondence. At that time Dr. Divirgilio was the Dean of the AUC and therefore administrative responsibilities as well as responsibility for the students. Dr. Tien took Dr. Divirgilio PAGE 6 MISSING went to the AUC and met the students to try to clarify the situation. Dr. Tien was present. The meeting broke up in disorder when a number of students became loud and abusive and the Chief Minister and his Ministers had to leave. Dr. Divirgilio said that the students would have broken Dr. Tien' s leg if he if he did not have such a good relationship with them and stopped them.

14 I believe that Dr. Divirgilio had deliberately misrepresented the facts to the students in a manner which was grossly unfair to the Government of Montserrat and to Dr. Tien, and which in fact caused unrest and agitation among the student body thereby causing or stimulating feelings of dissatisfaction among the student body.

15 While Dr. Divirgilio was Dean of Medical Science, he also criticised Dr. Tien on several academic matters and policies. He became angry that certain predominantly clinical courses...