Arthur Robinson v The Public Service Commission
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 03 May 2023 |
| Neutral Citation | TT 2023 HC 123 |
| Docket Number | Claim No. CV2021-01788 |
| Court | High Court (Trinidad and Tobago) |
Before the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No. CV2021-01788
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
(Port of Spain-Virtual Hearing)
Mr. Kenneth Thompson, Attorney-at-Law for the Claimant
Ms. Keisha Prosper, instructed by Ms. Kezia Redhead, Attorneys-at-Law for the Defendant
The Claimant is a Prisons Officer II serving in the Prison Service as a Physical Training Instructor since 1990, who in 2006 accessed training in massage, which he considered relevant to his role as a trainer. He obtained a Diploma.
By the instant Claim, he challenges the failure of the Public Service Commission [the Defendant-PSC] to award him four points under the Special Qualifications criteria applicable for upward mobility on the order of merit list [OML] in a promotions process commenced in 2018. Ultimately, the process generated a 26 February 2021 OML for promotions to Prison Supervisor, on which the Claimant was placed at #51. This was based on an assessment that he was awarded only 70 points because he was not granted four points for his Diploma. The non-award of the four points led to the Claimant being placed lower down on the OML.
According to the Claimant, he was entitled to be awarded four points as the holder of a Diploma in Therapeutic Massage from what he refers to as a ‘recognized. tertiary institution, the Trinidad and Tobago College of Therapeutic Massage and Beauty Culture Limited [TTCTMBC].
The Claimant bases this assertion on legitimate expectation arising from the Defendant's General Order No. 151 of 2017 [the Order]. By that Order, the Defendant published the criteria that would be used to assess officers by awarding points for placement on the OML and resulting promotions. Only officers with 75 points and over were eligible for promotion to Prisons Supervisor based on the 2017 Order.
Among a number of categories to be considered in awarding points, the Defendant included “Special Qualifications” such as Diplomas and Degrees in relation to which a range of three to five points could be awarded.
There was also a separate category entitled “Special Courses”, in which only one point per course would be awarded. The Claimant's case is that, as the holder of a Diploma, he should have been awarded four points under Special Qualifications instead of having the diploma treated as a Special Course. Therefore, if the Defendant awarded the Claimant four points, his final assessed points would be at least 73 points 1, bearing in mind that his allocated 70 points included one point for the Diploma, which was treated as a short course.
The Claimant further contends that the failure of the Defendant to award him the four points was irrational, contravened principles of natural justice, constituted an abuse of power and contravened his right to protection of the law under Section 4(b) of the Constitution. Accordingly, he seeks the following relief:
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i. A declaration that the decision of the Public Service Commission (PSC) whereby it published or caused to be published an Order of Merit List (OML) dated the 26 th day of February 2021, for the promotion of Prisons Officer II to Prisons Supervisor which was generated from a promotional assessment process based on a points system in which the PSC failed to award the Claimant four points for being the holder of a Diploma from a recognised tertiary institution, was irrational and constituted a contravention of the principles of natural justice and abuse of power;
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ii. A declaration that the aforesaid decision has contravened the Claimant's fundamental right to the protection of the law as guaranteed by Section 4 (b) of the Constitution of Trinidad and Tobago;
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iii. A declaration that the decision of the PSC in causing to be published in General Order No. 151 of 2017 of the Prison Service, in which it was stated that officers who held a Diploma from a recognised tertiary institution would be awarded four (4) points under the criterion of Special Qualifications, created in the Claimant a legitimate expectation that he would be awarded four (4) points for his Diploma in Therapeutic Massage from the Trinidad and Tobago College of Therapeutic Massage and Beauty Culture Limited, a recognised tertiary institution, and the failure of the PSC to award the Claimant the said points, constituted a violation and frustration of the said expectation;
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iv. An order of certiorari removing into the Honourable Court and quashing the aforesaid OML;
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v. An order directed to the PSC requiring it to award the Claimant four (4) points for his Diploma under the criterion of Special Qualifications and rectify the OML to reflect thereon the correct position of the Claimant's name;
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vi. An order for monetary compensation to be assessed in favour of the Claimant for the contravention of the Claimant's aforesaid fundamental right; and
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vii. Costs.
The Defendant's sole witness, Senior Human Resource Adviser (Ag.), Rodney Mohammed, sets out the Defence to the Claim in his affidavit. He averred at paragraph 19 that the Claimant's Diploma was not classified under Special Qualifications, as the Accreditation Council of Trinidad and Tobago [ACTT] did not accredit the institution and the programme.
In two subsequent Affidavits, the Claimant relied, inter alia, on documents attached to the Defendant's Affidavit to refute the validity of the Defendant's reason for not awarding the four points.
The two issues considered to be relevant to determine the matter are whether:
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i. The Defendant breached a legitimate expectation that the Claimant would be awarded four points for his Diploma and/or acted irrationally in so doing, and
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ii. In deciding not to award the four points, the Defendant breached natural justice and/or the Claimant's rights under Section 4(b) of the Constitution to protection of the law.
The proceedings commenced with the Claimant's 24 May 2021 application and affidavit for leave to file a claim for judicial review, which the Court granted on 4 June 2021. The Fixed Date Claim was filed with a supporting Affidavit on 7 June 2021.
The Defendant filed one affidavit of Rodney Mohammed on 2 September 2021. Mr. Mohammed exhibited, as “ RM1”, a download from the website of the ACTT. He described it as a true copy of the list of accredited institutions, thereby implying that only qualifications from institutions appearing in that list were classified by the Defendant as Special Qualifications and awarded 5 or 4 points.
The Claimant's third Affidavit in these proceedings was his 20 September 2021 affidavit in reply to Mr. Mohammed's affidavit. In a 25 October 2021 application, the Claimant sought further disclosure by the Defendant of lists of:
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i. All qualifications treated as special qualifications in 2017, and
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ii. All institutions not appearing on the list of accredited institutions attached to Rodney Mohammed's affidavit at “ RM1” but from which qualifications were treated as “special qualifications.”
Based on the Defendant's objections, the application was dismissed on 5 January 2022. The Court directed parties to file closing submissions commencing with the Claimant on 29 April 2022.
Before filing his closing submission, the Claimant filed another application on 20 April 2022, seeking permission to file a supplemental affidavit. That application was granted on 25 April 2022. The Claimant then filed his fourth Affidavit on 26 April 2022, as well as a closing submission on 29 April 2022.
The parties filed two further applications in June 2022. Firstly, the Claimant applied for permission to cross-examine the Defendant's witness. Secondly, the Defendant applied to strike out paragraph 6 of the Claimant's 20 September 2021 affidavit and paragraph 4 of his 26 April 2022 affidavit. In those paragraphs, the Claimant attested to his knowledge of officers vying for promotion being awarded points under “special qualifications” for qualifications obtained from institutions that do not appear on the list of accredited institutions relied on by the Defendant at “ RM1”.
On 6 July 2022, the Court dismissed the Defendant's striking out application. It was accepted that the challenged affidavit paragraphs were in response to “ RM1” as a rebuttal. The facts stated therein did not raise a new case as alleged by the Defendant. The rebuttal facts were of central relevance in the context of the case as pleaded by the Claimant from inception because the Defendant sought to establish that only qualifications that were issued by institutions named in “ RM1” attracted points under Special Qualifications.
The Court granted the Claimant permission to cross-examine the Defendant's witness. Counsel for the Claimant conducted the cross-examination on 4 January 2023. Parties were directed to file submissions afresh after the hearing.
The Claimant complied with directions by filing submissions on 10 March 2023 and also served the Defendant, despite the Defendant's failure to comply with the order that submissions be filed and exchanged that day. The Defendant was granted an extension of time to file submissions and did so on 20 March 2023, following which the Claimant filed submissions in Reply on 24 March 2023.
On a review of the four affidavits filed by the Claimant, the Defendant's sole affidavit and the cross-examination evidence of Mr. Mohammed, the factual background to this case is entirely undisputed. Consequently, the sole issue of fact that counsel for the Defendant sought to shed doubt on, in closing submissions, was whether there was any evidence presented by the Claimant to substantiate that prison officer Mr. Ceron Richards attained five points under...
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