The notes illustrate the wide range of issues that are handled by the Ombudsman, not only in terms of subject matter but also by the type of outcome reached. For those who have an interest in the work of this office, the material provides guidelines and standards of good administration against which public officers can measure their actions. Narrated in anonymous form, these summaries serve to raise awareness against possible pitfalls caused by deficient administration which must be avoided if people are to be dealt with properly, openly and impartially.

Case No C 454

Mediterranean Conference Centre

The complaint

A consultant, initially recruited on a one-year contract that was renewable for a further period of one year with the Mediterranean Conference Centre, declared that he was extremely perturbed when a few days after the end of the first year of his contract, he was summarily informed in writing that the consultancy post was being made redundant and that his agreement had been terminated.

Feeling aggrieved at the manner in which his assignment had been brought to an end, the consultant wrote to the Centre through his lawyer to point out that this action was in flagrant breach of the agreement between the two sides. In this letter the consultant requested that the agreement be renewed for another year and held the management responsible for all the damages that he had suffered or might suffer as a result of this decision.

Since no reply was forthcoming after a lapse of more than six months, the case was referred to the Ombudsman for his consideration.

Facts of the case

By means of a one-year consultancy agreement that took effect on 1 January 2001, the complainant was entrusted with the responsibility to undertake a range of tasks aimed at a fuller utilisation of the facilities at the centre and at the promotion of the centre as a venue for cultural activities. The agreement also stipulated the annual consultancy fees payable for services rendered by the consultant as well as the retainer fees to which he was entitled from activities which he was expected to introduce during his assignment.

With regard to the duration of the agreement, the relevant clause of the contract stated as follows:

“This agreement shall be automatically renewed for a further period of one year unless either party gives notice in writing of the intention to terminate this agreement two months prior to the expiry of the initial one-year period.”

When the Ombudsman approached the Centre in connection with this complaint, it was explained that throughout the agreement clear indications started to emerge that the objectives of the contract were not being attained and that no effective measures were being taken by the consultant to address this situation. The management felt that the consultant had failed to remedy this unwelcome state of affairs and that he was not being sufficiently proactive in his initiatives to generate and capture more work.

It was explained by management that, given this failure to achieve any tangible results, the complainant had been verbally informed even more than two month prior to the expiry of the initial one-year term of the contract of the intention to terminate the consultancy agreement due to the fact that there was no work for him to perform. The management argued that this verbal notice in itself was adequate to satisfy contract conditions regarding the procedures that had to be followed whenever either party wanted to terminate the agreement.

For his part, the complainant argued that he could not accept that any words to this effect should have been interpreted as the formal notice that was specifically required under the terms of the contract if his services were no longer needed after 31 December 2001. In any event, he firmly denied that he had ever been informed verbally of management’s intention not to renew the contract some two months prior to its expiry. The consultant therefore had continued to report for work even after the end of 2001.

When the consultant ignored the verbal notice that had been given to him and continued to appear at his workplace, even after the first year of the agreement had expired, the management informed him in a letter dated 7 January 2002 that “As you are well aware during the year the ideas for which you were contracted failed to materialise for a number of reasons and the post is therefore not sustainable any further. In view of the above the consultancy post is being made redundant and your consultancy terminated.”

The management pleaded that although the complainant claimed that notice to terminate the contract was given verbally and not in writing, however, this was of no consequence. It was held that, substantively, notice was given to the complainant and although admittedly not in writing, this did not alter the fact that adequate notice had indeed been given. According to the management, the written letter conclusively establishes that the notice to the employee was in fact given and its absence by the stipulated date did not render the verbal notice issued earlier null and void.

The consultant countered the management’s comments that he had not achieved any significant results by stating that his efforts to introduce a range of activities in the centre had reached an advanced stage by the time his contract was terminated. The complainant explained that he had also worked hard on other activities and whereas one of these events had been cancelled due to the various changes that were being continuously introduced by management, the other activity was still under active consideration at the time that his consultancy post was made redundant.

Although the complainant alleged that after his former post had been declared redundant, another employee had been recruited to carry out his tasks, this claim was not, however, substantiated.

In order to strengthen the claim that the complainant had been given adequate warning about the quality of his work output and about the management’s intention to terminate the contract, the Ombudsman received a statement from a member of the centre’s management team recalling an instance in December 2001 when the complainant was told that his contract would not be renewed on grounds of non-performance.

Outcome

In his review of this case, the Ombudsman pointed out that the contract between the complainant and the centre was a definite one-year contract which could be automatically renewed for a further period of one year unless either party to the agreement gave formal notice in writing of its intention to terminate the agreement two months prior to the expiry of the initial one-year period. On this basis, 31 October 2001 was the latest date when either side could inform the other in writing regarding its intentions for the year ahead.

The Ombudsman stated that this was the nub of the matter: whether the complainant had been informed in writing in time, in accordance with the contractual obligations binding the two parties, of the management’s intentions regarding the renewal or otherwise of the contract after the end of the year. In the view of the Ombudsman, all other considerations such as those relating to the quality of the output provided by the complainant during his stint at the centre were irrelevant and he felt that any comments on his part on this aspect of the case would be superfluous.

The Ombudsman agreed that the management had acted fully within its mandate and had used its discretion when it decided not to retain the services of the complainant beyond 31 December 2001. This decision, however, in turn brought about an obligation on the part of the management to inform the complainant in writing as to its intentions by not later than 31 October 2001.

The management’s insistence that it had provided adequate verbal warning to the complainant more than two months before the end of the contract could not therefore be taken to have satisfied the terms of the contract since the only valid formal notification that it gave to the complainant was by means of its letter dated 7 January 2002.

The Ombudsman recalled that the contract made no mention of the way in which it could be rescinded before its expiry. At the same time he accepted that the management had full competence to take the decision to bring the contract for consultancy services to an end if members shared the view that the services provided by the complainant were no longer required.

Although in this regard the management had exercised its right to terminate the contract with the complainant, it had failed to inform him in writing by the due date of its intention not to renew the agreement. This constituted an act of maladministration and drew a critical remark from the Ombudsman.

In order to make up for this deed, the Ombudsman recommended that the complainant should be awarded the sum of Lm500 which was equivalent to the consultancy fees due to him for two months under the 2001 contract.

On its part the management continued to maintain that its actions were legally correct and that it had honoured the stipulations of its contract with the complainant when it had informed him verbally that the contract would not be renewed.

Despite its reservations on the recommendation put forward by the Ombudsman, the management agreed, however, to pay the complainant the sum that had been recommended by the Ombudsman as a sign of respect towards the ombudsman institution.