……..20 year battle ends in the Privy Council
By FRANCIS JOSEPH
Ian Green had been a fire officer for 42 years. He possessed a number of qualifications including a Master’s in Human Resource Management. But that was not sufficient for him to be promoted within the Fire Service.
Despite his qualifications, he was bypassed for promotion on a number of occasions. As a result, Green filed for judicial review against the decision of the Public Service Commission (PSC).
On Monday, the Judicial Committee of the Privy Council, by a 4-1 majority, ruled that Green was not discriminated. It has ended his 20 year-old battle for promotion.
The appeal in London was heard before Lord Lloyd-Jones, Lord Briggs, Lord Burrows, Lord Doherty, and Sir Anthony Smellie. Rishi Dass SC and Tamara Toolsie instructed by Charles Russell Speechlys LLP (London)), appeared for the PSC. Attorney Kenneth Thompson represented Green. Peter Knox KC and Robert Strang, represented the interested party – the Chief Personnel Officer.
The Case
Green did not pass a job-related written examination (regulation 8(1)(a) of the Fire Service Regulations) nor did he hold the Graduate Diploma of the Institution of Fire Engineers (GDIFE) (regulation 8(1)(b)). He held a Post-Graduate Diploma in Human Resource Management and a Master’s Degree in Human Resource Management from the University of the West Indies. He also held an Associate Degree in Management from the College of Science, Technology & Applied Arts of Trinidad and Tobago.
In 2006, Green applied to the Chief Fire Officer (CFO) for a determination for the purposes of regulation 8(1)(b) that his Diploma in Human Resource Management was an equivalent related qualification to the GDIFE. Following receipt of that application, the CFO issued a memorandum dated the 12th of July 2006 to the CPO which concluded: “Subject to the concurrence of the Permanent Secretary, Ministry of National Security and the Chief Personnel Officer, the Chief Fire Officer has no objections in accepting the Post Graduate Diploma in Human Resource Management as equivalent, related qualification in accordance with regulation 8(1)(b) …”
However, in a memorandum dated the 15th of December 2006, the CPO advised the Permanent Secretary that Green’s Diploma “cannot be considered as an equivalent qualification” in accordance with regulation 8(1)(b) “as it does not address the technical aspects of the job related to firefighting and the Fire Service.”
The memorandum added that, in light of the combination of Green’s experience and qualifications, the CPO would have no objection to him being exempted from writing the Management Studies Examination required by regulation 8(3).
The memorandum concluded: “Please be guided accordingly.” On the 11th of May 2007, the Fire Service’s Director of Human Resources (Mr John Edwards), acting for and on behalf of the CFO, wrote to Green informing him that his diploma was not an equivalent related qualification in terms of regulation 8(1)(b) “as it does not address the technical aspects of the job related to Firefighting and the Fire Service”.
The letter also advised: “…[I]n light of the combination of the courses pursued and the experience and certificates obtained by you, the Chief Fire Officer in consultation with the Chief Personnel Officer and the Permanent Secretary, Ministry of National Security has exempted you from writing the Management Studies Examination at regulation 8(3) … Please be guided accordingly.”
Green did not challenge the determination of the CFO that his diploma was not an equivalent related qualification. On the 7th of November 2011, the CFO prepared a memorandum with a list of candidates to be considered for promotion (the 2011 list). Green’s name was the first name on the list. Five other Fire Sub-Station officers were below him in the list.
On the 11th of January 2013, the CFO submitted to the PSC a list of 39 Fire Sub-Station officers. Green was number nine on the list. One column of the list was headed “Qualification” and indicated whether the officer had passed the FSO Exam or the GDIFE. The next column was headed “Eligible”. It contained dates. All 38 other officers listed had passed either the FSO exam or held the GDIFE.
In Green’s case, the qualification column listed his Certificate in Human Resource Management and Public Relations Management and his Diploma and Master’s degree in Human Resource Management, and the date in the Eligible column next to his name was 2006.
At a meeting on the 24th of March 2015, the PSC determined that five Fire Sub-Station officers should be promoted. All of those had passed the FSO Exam. All were above Green on the 2013 list. Green was not promoted. The promotions were confirmed by the Fire Service Order No 4 of 2015 dated the 21st of April 2015.
Green filed for judicial review. On the 14th of December 2016. Justice Frank Seepersad dismissed Green’s claim. He held that the PSC was bound by the Fire Service Regulations which set out a statutory scheme for appointment to offices within its purview.
The Court of Appeal allowed Green’s appeal, set aside Justice Seepersad’s decision, and granted declarations:
(i) that the PSC’s decision of the 21st of April 2015 was arrived at by a process outside that prescribed by the PSC Regulations;
(ii) that the decision was unreasonable, irrational and contrary to the principles of natural justice. The court invited further submissions as to
(1) whether judicial review was a prompt and effective remedy in this case;
(2) whether the contravention of any rights guaranteed by the Constitution had been established;
(3) whether an award of damages/compensation was appropriate, and if so the proper approach to determining quantum. After a further hearing, on the 11th of December 2023. the Court of Appeal by a majority (then Chief Justice Ivor Archie and Justice Malcolm Holdip) found that there had been a breach of Green’s rights under section 4(b) of the Constitution and ordered that damages be assessed pursuant to section 8(4) of the Judicial Review Act.
The court remitted the matter to the High Court for damages to be assessed. In his dissenting judgment, Justice Nolan Bereaux disagreed with damages being assessed under that Act. He would simply have declared that there had been a breach of section 4(b) of the Constitution and ordered that compensation be assessed for that breach.
In its decision, the Privy Council said, “The Court of Appeal erred in allowing the appeal against the judgment of Seepersad J. The Board allows the appeal against the order of the Court of Appeal dated 16 December 2022. Since that order was the foundation for the Court of Appeal’s order of 11 December 2023 remitting the matter to the High Court for an assessment of damages, the Board also allows the appeal against that order. Seepersad J’s order of 14 December 2016, which dismissed the claim and ordered the respondent to pay the appellant’s costs, is restored.”
The dissenting judge, Sir Anthony Smellie, said, “I find myself however, in respectful disagreement with my Lords on the factual merits of the appeal.”
