Beulah Drakes v Chief Personnel Officer
| Jurisdiction | Barbados |
| Judge | Mr. Justice Barry L. Carrington |
| Judgment Date | 22 December 2022 |
| Neutral Citation | BB 2022 HC 59 |
| Docket Number | NO. CV 111 OF 2015 |
| Court | High Court (Barbados) |
| Year | 2022 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
The Honourable Mr. Justice Barry L. Carrington, Judge of the High Court.
NO. CV 111 OF 2015
Mr. Gregory P.B. Nicholls, Attorney-at-Law for the Applicant.
Ms. Marsha Lougheed, Attorney-at-Law for the Respondents.
On August 13,2013 the Honorable Minister of Finance and Economic Affairs presented the 2013 Financial Statement and Budgetary Proposals in which he addressed, among other things, the need to reduce the public sector employment and wages and salaries bill for the Government of Barbados. On December 13, 2013, in a document titled ‘Ministerial Statement on Government Fiscal Consolidation Program 2013-2015’, the government outlined the reduction of the number of public sector posts, after reviewing the number of temporary and established posts in both the public sector and various statutory corporations. Government decided to reduce the number of employees by about 3000 across the overall public service including central government and state owned enterprises. Estimated savings of approximately $143 million in a full financial year or roughly $35 million over the last quarter of the then current financial year were envisaged. The retrenchment process was to be spread over the period January 15,2014 to March 31,2014.
The Applicant who was appointed to the temporary post of Projects Officer in the Ministry of Agriculture, Food, Fisheries and Water Resource Management (“Ministry of Agriculture”), was one of the persons affected by the retrenchment exercise. She received a letter from the Chief Personnel Officer dated April 2, 2014, informing her that with effect from the following day, she was being terminated from the temporary post of ‘Project Officer’, Ministry of Agriculture. She was told that the temporary post of Project Officer had been withdrawn by the Minister responsible for the public service as part of government's retrenchment exercise and therefore her temporary appointment in the public service would be effectively terminated. The Applicant filed an application for judicial review challenging (i) the unlawful, unconstitutional, ultra vires administrative decisions, acts and/or omissions occasioned by her termination from the public service after 19 years in the post of Projects Officer in the Ministry of Agriculture, and (ii) the failure and/or refusal to permanently appoint her to the public service as required by the Public Service Act, Cap. 29 (“the Public Service Act”).
The Applicant was appointed to the temporary post of Projects Officer in the Ministry of Agriculture, with effect from December 15, 1995. Her letter of appointment states:
“I am directed to inform you that the Governor-General, acting in accordance with the advice of the Public Service Commission, has been pleased to approve your appointment to the temporary post of Projects Officer, Rural Development Unit, Ministry of Agriculture and Rural Development, with effect from 1995-12-15 until further notice.
2. You will be paid salary at the rate of $4,268.46 per month.
3. You will be subject to such rules, regulations and administrative directives as may be in force from time to time.
4. The appointment is temporary and may be terminated by at least one month's notice on either side.
Yours faithfully,
(signed)
for Chief Personnel Officer
…
…
Reason: Temporary post created by Ministry of the Civil Service memorandum Ref. 6201/7/8 Vol. 1 of 1995-06-01.”
In the interim, the Applicant acted as Chief Economist, Ministry of Agriculture from November 25, 1996 to December 27, 1996.
When the government decided on its retrenchment programme and determined the number and persons who would be affected, the Applicant received a termination letter dated April 2, 2014, that stated:
“I am directed to inform you that as part of Government's retrenchment Exercise, the temporary post of Project Officer, Ministry of Agriculture, Food, Fisheries and Water Resource Management created by the Permanent Secretary, Ministry of the Civil Service vide memorandum Reference No. 62001/7/8 Vol. 1, dated 1995-06-01 has been withdrawn, with effect from 2014- 04-01 vide memorandum Reference No. 6205 Vol. 1 T4, dated April 2,2014.
2. As a result, your temporary appointment to the temporary post of Project Officer will be terminated, with effect from 2014-04-03.
3. You will be paid one (1) month's salary in lieu of notice and for any vacation leave to which you are entitled.
4. It is noted that you were employed continuously in a temporary capacity as Project Officer, Ministry of Agriculture, Food, Fisheries and Water Resource Management, with effect from 1995-12-15.
5. Therefore, you are eligible to opt for either terminal pay on the basis of 2.5 weeks basic pay for each year of completed service or to apply for pensionable benefits based on your pensionable service in accordance with the Pensions Act, Cap. 25 of the Laws of Barbados.
Yours faithfully,
(signed)
for Chief Personnel Officer”
The Applicant referred the termination letter to her trade union which wrote to the First Respondent advising that her termination from the public service was unlawful and irregular. On her behalf, the union rejected both payment options outlined in the termination letter alleging that the Respondents did not consider section 13(5) & (7) of the Public Service Act and section 13D of the Pensions Act Cap. 25 (“the Pensions Act”) in their determination. The First Respondent replied and indicated that a review of section 13(5) & (7) was conducted and the Applicant had no entitlement to be appointed to the public service and no right to be employed in the public service until age sixty-seven (67), or thirty-three and a third years (33 1/3) years pensionable service, pursuant to section 13D of the Pensions Act.
The Applicant commenced proceedings against the Chief Personnel Officer, the Public Service Commission and the Attorney General of Barbados by Fixed Date Claim Form and supporting affidavit both filed on February 2, 2015, seeking judicial review of
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(i) the process which occasioned the termination of her appointment as Projects Officer (Temporary) in the Public Service; and
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(ii) the process which occasioned the failure and/or refusal of the Public Service Commission and/or the Chief Personnel Officer to effect (sic) her permanent appointment to the post of Projects Officer or to an office/post of a similar grade in the Public Service.
She seeks relief under section 5 of the Administrative Justice Act Cap. 109B (Administrative Justice Act), as follows:
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(i) a declaration that the process which occasioned the purported termination of the Applicant from the public service of Barbados is unlawful, null, void and of no legal effect;
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(ii) an order of certiorari to quash the decision to terminate the Applicant's employment in the public service of Barbados;
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(iii) an order of mandamus directing the Public Service Commission, the Personnel Administration Division, the Chief Personnel Officer or the relevant authority to restore her to the public service of Barbados in accordance with the provisions of the Public Service Act in appointing the Applicant;
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(iv) an award of damages;
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(v) costs; and
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(vi) any further order that the court deems appropriate.
The grounds for judicial review are:
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(i) the Defendants whether jointly and/or severally acted in a way unauthorized or contrary to law or failed to satisfy or observe the conditions and procedures required by law or acted unreasonably in terminating the Applicant's appointment in the post of Project Officer;
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(ii) the Defendants whether jointly and/or severally acted in a way unauthorized or contrary to law or failed to satisfy or observe the conditions and procedures required by law or acted unreasonably by failing to appoint the Applicant to the post of Projects Officer or to an office/post of a similar grade in the Public Service;
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(iii) the Defendants whether jointly and/or severally acted unreasonably, irregularly and improperly when they frustrated or dashed the Applicant's legitimate expectation to be appointed under the provisions of the Public Service Act;
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(iv) the Defendants whether jointly and/or severally acted unreasonably, irregularly and improperly and failed to satisfy or observe the conditions and procedures required by law when the Applicant was not given the option to retire from the Public Service at age 67 if she so desired and
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(v) the Defendants whether jointly and/or severally acted in conflict with the policy of an Act of Parliament by failing to appoint the Applicant to the post of Projects Officer or to an office/post of a similar grade in the Public Service and by failing to give the Applicant the option to retire from the Public Service at age 67 if she so desired.
On March 7, 2016, the Applicant filed an Amended Fixed Date Claim Form substituting the capacity in which the Attorney General was sued from ‘by virtue of section 14(2) of the Crown Proceedings Act, Chapter 197…’ to ‘a representative party… on behalf of the Crown in its right of Government of Barbados’. The Respondents have contested the claim for judicial review and filed affidavits of Ms. Gail Atkins, the then Chief Personnel Officer on March 26, 2015 and May 26, 2017, respectively, and Mr. Alison Forte, then Permanent Secretary, Ministry of the Civil service on May 26, 2017.
Counsel for the Applicant raised two (2) jurisdictional issues, namely (1) whether the Applicant's termination from the public service is amenable to judicial review under the ...
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