By FRANCIS JOSEPH
A Prison Officer who fought the Public Service Commission (PSC) for years over the fact that the PSC declared the officer as having resigned, has won her battle before the Judicial Committee of the Privy Council in London. Now she is entitled to more than $3 million in damages and back salary.
In a rare oral decision on Monday, the British judges found the constitutional rights of Favianna Gajadhar were infringed.
According to Lord Leggatt, “The history of this case is a sorry one.” He found that the withholding of Gajadhar’s salary from 2007 to 2019 was not only unlawful, but null and void and amounted to the arbitrary exercise of State power.
The appeal was argued on Monday. The judges returned and delivered an oral judgment in 23 minutes.
The question for decision –
* Was the Court of Appeal correct to set aside the trial judge’s findings that the Appellant’s right to property had been deprived under section 4(a) of the Constitution of Trinidad and Tobago? If so, was the Court of Appeal entitled to reduce the officer’s costs of the appeal by 50%?
THE FACTS
Gajadhar was appointed to the rank of Prison Officer I in the Trinidad and Tobago Prison Service in 2000. In 2003, she passed the promotion exam for the rank of Prison Officer II. She was granted two periods of absence. In October 2004, she undertook a period of sick leave after she was injured in a fall at the Women’s Prison, Golden Grove, Arouca.
In June 2006, Gajadhar had a baby and took maternity leave. The Attorney General of Trinidad and Tobago formally declared her as having resigned on the 21st of June 2007, even though she had sought to return to work after her maternity leave and provided certification in respect of her periods of absence.
The Public Service Commission (PSC) ultimately did not allow her to resume her duties until the 4th of April 2022. Gajadhar brought a claim under the Constitution of Trinidad and Tobago in respect of her treatment by the PSC and unpaid salary and benefits.
On October 26, 2023, Justice Frank Seepersad found a violation of section 4(a) (the right to the enjoyment of property), section 4(b) (the right to protection of the law) and section 129(4) (no penalty may be imposed on any public officer except as a result of disciplinary proceedings).
The Judge awarded the following:
* $275,000 for compensatory damages comprising $150,000 for loss of chance (i.e. her loss of the chance to be considered for a promotion) and $125,000 for distress and inconvenience, including an uplift for aggravated damages
* $350,000 for vindicatory damages;
* $2,821,744.54 for loss of earnings less all relevant statutorily mandated deductions, such as NIS and PAYE.
* Interest on the sum of$2,821,744.54 to accrue at a rate of 2.5% from the date of the filing of the claim until judgment.
* The court ordered that the AG should pay her costs certified fit for one Senior Counsel and two Junior Counsels.
The Attorney General appealed to the Court of Appeal (Justices Prakash Moosai, Gillian Lucky, and Mira Dean-Armorer), which allowed the appeal in part, finding that Gajadhar’s right under section 4(a) of the Constitution had not been breached. The AG was ordered to pay the officer 50% of the costs of the appeal. The Court of Appeal subsequently granted Gajadhar final leave to appeal to the Judicial Committee of the Privy Council.
The appeal was heard before Lord Sales, Lord Loyd-Jones, Lord Leggatt, Lady Simler, and Lord Snowden.
Anand Ramlogan SC appeared for Gajadhar by zoom, while Robert Strang represented the AG.
