Bailey-Clarke v The Ombudsman of Trinidad and Tobago and the Public Service Commission
| Jurisdiction | Trinidad & Tobago |
| Judge | Kokaram, J. |
| Judgment Date | 26 January 2017 |
| Neutral Citation | TT 2017 HC 11 |
| Docket Number | CV2016-01809 |
| Court | High Court (Trinidad and Tobago) |
| Date | 26 January 2017 |
High Court
Kokaram, J.
CV2016-01809
Mr. Anthony Bullock instructed by Mr. Imran Ali for the applicant.
Mr. Elton Prescott S.C. leads Mr. Rikki Harnanan for the first respondent.
Ms. Amirah Rahaman instructed by Ms. Elena Araujo for the second respondent.
Administrative law - Application for leave to apply for judicial review — Respondent's recommendation to the Public Service Commission that applicant revert to her former office — Whether the respondent is obligated to apply the procedural provisions of Regulation 43(1) — Whether the recommendation made is in breach of Regulation 43(1) — Interpretation of Regulation 43(1) — Whether the Commission's decision (made on the basis of the recommendation) is null and void — Whether the recommendation made or the decision made by the commission based on the recommendation is a breach of the principles of natural justice and/or a breach of the applicant's legitimate expectation — Whether the applicant is guilty of delay or failing to act with promptitude in making her application — Whether the proceedings are academic since there has been a reconsideration by the Public Service Commission of its decision — Whether the proceedings are premature — Whether leave ought to be granted to the applicant — Whether the applicant raised arguable grounds of review — Whether realistic prospect of success — Probationary period — Failure to comply with statutory obligations — Whether there are discretionary bars to the grant of leave — Whether leave should be granted in the circumstances — Regulation 39, 41, 42(4)(d) of the Public Service Commission Regulation.
“The Courts do not sit as a Court of Appeal from the decisions of the Public Service Commission and are in no way concerned with the merits of candidates for promotion or the micromanagement of personnel decisions …. The Courts are concerned to ensure that public bodies carry out the functions that the relevant legislation assigns to them.” per Lord Sumption Harinath Ramoutar v. Commissioner of Prisons and Public Service Commission [2012] U.K.P.C. 29.
This application for judicial review is another occasion to underscore the importance of the fair processes that exist to deal with staff in the public service under the Public Service Regulations (Regulations). The Court in exercising the supervisory jurisdiction over administrative action resists micromanaging matters which fall squarely within the Public Service Commission's expertise. In such instances, the Public Service Commission is entitled to make such operational and managerial decisions in the exercise of its discretion. The Courts however insist that it and the officers whom they consult comply with their relevant statutory functions and observe the principles of fairness that may be imbedded in the discharge of those functions.
The applicant, Ms. Bailey-Clarke, was an Executive Officer serving a period of probation in the Office of the Ombudsman, the First Respondent. She has sought in these proceedings to challenge both a recommendation made by her superior the Ombudsman made on 26th January 2016 and the subsequent decisions of the second respondent, the Public Service Commission, made on 26th February 2016 and 12th March 2016, to terminate her probationary period and that she revert to her former office.
Probationary appointments in the public service under the Public Service Regulations such as Ms. Bailey-Clarke's serve as a testing ground. It is where the probationer is supervised, given the opportunity to learn, demonstrate fitness for confirmation in the office and is generally under critical assessment as to her suitability for the job. A probationer no doubt has aspirations to be confirmed in her job. However the probationer can lay no claim to the higher office. She must demonstrate through performance her fitness for that office. The critical trigger for the confirmation in an appointment, after serving a period of probation, is the probationer demonstrating to the Public Service Commission satisfactory service in the probationary period after it considers the final report of the Head of Department, in this case, the Ombudsman. In the submission of that final report by the Ombudsman there must also be a firm recommendation made to the Public Service Commission as to the fate of the probationer. Whether to confirm, extend the probationary period, terminate the services or revert to a former office. These are managerial and operational recommendations based upon the Ombudsman's qualitative assessment of the probationer's performance. However they are recommendations to be made against the backdrop of a fair process imbedded in the Regulations.
Ms. Bailey-Clarke contends that both the recommendation and decision was: made in breach of the principles of fairness and/or natural justice; an improper exercise of discretion and/or is irrational and made in bad faith and void for non-compliance with Regulations 43(5) and 43(1). This challenge brings under anxious scrutiny the process by which her appointment on probation was terminated and the statutory functions to be performed by the Ombudsman and the Public Service Commission. Specifically, it raises the main issue whether it is necessary for the probationer to be informed of a recommendation by the Ombudsman that she revert to her former office and to make representations before any such firm recommendation is made to the Public Service Commission pursuant to Regulation 43(1).
These issues arise against the backdrop of unhappy differences which arose between the Ombudsman and Ms. Bailey-Clarke while she was serving her probationary period as Executive Officer over the period 2015 to 2016. The Ombudsman rated Ms. Bailey-Clarke's performance for the period as unsatisfactory. The Ombudsman assessed her as unfit to assume the higher office of Executive Officer. It is a view that is strongly resisted by Ms. Bailey-Clarke. It is apparent that there existed a strained relationship between them arising from differences in the execution of the work in the office of the Ombudsman. Eventually, at the end of the probationary period, the Ombudsman recommended to the Public Service Commission that Ms. Bailey-Clarke revert to her former office. This recommendation which was submitted with the Final Report was never shared with Ms. Bailey-Clarke to solicit her response. It was a recommendation which was considered by the Public Service Commission in making its decision. Ms. Bailey-Clarke was given an opportunity to address the Public Service Commission on its decision after which the Public Service Commission decided that the decision should stand. Yet that reconsideration by the Public Service Commission did not take into account the fact that the Ombudsman's recommendation was never seen by her or shared with her before it was made or during the course of the Public Service Commission's deliberations.
It is not in dispute that a probationer must be treated fairly during her probationary period. It cannot be disputed that the Regulations governing the probationary period are imbedded with notions of fundamental fairness. What these judicial review proceedings essentially focuses on is the content of the duty of fairness to the probationer when the Ombudsman is making the final assessment of her service on probation pursuant to Regulation 42(4) against the backcloth of the Regulations and statutory obligations of the Ombudsman and Public Service Commission. It examines the extent to which a procedurally irregular recommendation of the Ombudsman's qualitative assessment of the probationer and her future can have the domino effect of vitiating the Public Service Commission's managerial decision which took that recommendation into account together with the final report. It also brings into question the larger issue of the process to be adopted by the Public Service Commission under Regulation 44 to sufficiently comply with that statutory function.
The Respondents resist this claim, in the main, by relying (a) on a series of events to demonstrate that substantially Ms. Bailey-Clarke was given a full opportunity to make her representations in relation to a final decision that she revert to her substantive post (b) that the proceedings are moot having regard to the negative comments made by the Ombudsman of her patent unsuitability and the review process adopted by the Public Service Commission and (c) in any event that such a requirement for a hearing in Regulation 43(1) does not apply to a firm recommendation for the probationer to revert to her former office. They also complain of delay in commencing proceedings against the Ombudsman and acting prematurely against the Public Service Commission.
In my view, Regulation 43(1) of the Regulations clearly places an obligation on the Ombudsman as Head of Department to inform the officer on probation of any recommendation for the termination or extension of the period of probation before the firm recommendation is made to the Public Service Commission. Out of the four (4) available recommendations these two have been viewed by the drafters as serious enough deserving a hearing. Although Regulation 43(1) clearly does not specifically refer to a recommendation of “reversion to a former office” it is clear that the termination of the period of probation is a natural consequence of the recommendation to revert to a former office. Such a termination of appointment is inextricably linked and an inevitable feature of either a recommendation to revert to a former office or alternatively a termination of services altogether. They go hand in hand.
However regardless of the recommendation, the Public Service Commission is the body that makes the final decision on the...
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