Chee v The Statutory Authorities Service Commission

• Jurisdiction: Trinidad & Tobago
• Judge: Eleanor J. Donaldson-Honeywell
• Judgment Date: 25 April 2017
• Neutral Citation: TT 2017 HC 59
• Docket Number: Claim No CV 2016-04405
• Court: High Court (Trinidad and Tobago)
• Date: 25 April 2017

IN THE HIGH COURT OF JUSTICE

In the San Fernando Sub-Registry

Before:

Madam Justice Eleanor J. Donaldson-Honeywell

Claim No CV 2016-04405

Between

Joan Chee

Claimant

and

The Statutory Authorities Service Commission

Defendant

Appearances:

Mr. Anand Ramlogan SC, Ms. Jayanti Lutchmedial, Mr. Kent Samlal and Mr. Douglas Bayley Attorneys-at-Law for the Claimant.

Mr. Duncan Byam, Ms. Karlene Seenath and Ms. Amrita Ramsook Attorneys-at-Law for the Defendant.

Legislation:

Civil Proceedings Rules, 1998

Judicial Review Act, Chap 7:08, s.21

Judicial Review - Application for judicial review — Acting appointment — Certiorari — Whether defendant failed to consider or gave insufficient weight to relevant factors — Whether decision not to appoint claimant unreasonable and/or irrational — Whether claimant entitled to relief.

Statutory Authorities Services Commission Regulations Chap. 24:01

JUDGMENT

I. Introduction:

1. In the twilight of a career at the Port-of-Spain City Corporation (“the Corporation”) that spanned her adult lifetime, Joan Chee (“The Claimant”), now seeks judicial review of the Statutory Authorities Services Commission's (“SASC”), October 3, 2016 decision to appoint another person, instead of her, to act as Personnel and Industrial Relations Officer III (‘PIRO III’). She had always looked to that position as the highest in her stream at the Corporation, having held the position of PIRO I and acted as PIRO III previously.

2. The person appointed to act in the position, instead of her, had neither acted as PIRO III before nor served in lower PIRO positions. The Claimant argues that the Defendant's stance that she was junior in line to the person selected for the PIRO III position was erroneous. She further contends that her experience, qualifications and the recommendation of the CEO of the Corporation gave her a legitimate expectation that she would be appointed to act in the position of PIRO III that had become available. The decision of the SASC (“the Defendant”) is challenged as being irrational, unreasonable and unfair. The Claimant seeks among other relief to have the decision quashed and remitted by the Court to the Defendant for reconsideration.

3. The Defendant, immediately after making its 3^rd October, 2016 decision, gave no reason to the Claimant for bypassing her. No information was forthcoming for some time thereafter despite written requests by her Attorneys pursuant to the Freedom of Information Act, 1999 and the Pre-Action Protocol prescribed by the Practice Direction under the Civil Proceedings Rules, 1998 (“CPR”) as amended.

4. Eventually, in a November 30, 2016 response to the Pre-action protocol letter penned by Djallon Frederick, State Counsel II at the SASC, the Defendant sought to give a reason which was largely focussed on conceived seniority of the other person selected to act. The Defendant contended that although the other person selected had not worked as a PIRO she had relevant training and experience form working as an Administrative Officer II (“AO II”) and was senior to the Claimant in the general structure of the Corporation. From her substantive position of AO II she had acted as Deputy CEO. Furthermore the Defendant said that there was an Administrative Assistant at the San Fernando City Corporation who was also senior to the Claimant and entitled to be considered for the Port-of-Spain position. That person however refused the acting appointment.

5. Heavy reliance was placed by the Defendant on the Judgment of Moosai JA in CA No. 122 of 2008 SASC v Jacqueline Solomon-Sankar as authority that persons from all streams and locations falling under the SASC and not just those in any one stream at the Corporation had to be considered based on seniority for the acting appointment.

6. Such as it was, the explanation given by the Defendant was not supported by documentary proof. In particular the Minutes of the Defendant recording the decision in the manner required by Regulation 6 and 7 of the SASC Regulations, Chap 24:01 (“the Regulations”) was not disclosed until a few weeks before the date for delivery of Judgment herein. The document; Minutes of a December 13, 2016 meeting of the Defendant which took place long after the decision was made, recorded no reference to any consideration other than alleged seniority as having been taken into account.

II. Conclusion and Issues considered:

7. In all the circumstances of this case I have concluded that the Defendant's decision erroneously failed to properly apply the regulations and in particular Regulation 26(1) (a) which prescribes the manner in which seniority in “the Department” should be treated with when making acting appointments. The decision was also made without taking into account relevant factors including the specialized experience of the Claimant as well as the recommendations made in her favour by the Corporation's CEO. The Defendant acted irrationally and in breach of the Claimant's legitimate expectation to be considered to act as PIRO III based not only on her seniority as the person next in line in the PIRO stream but on other relevant factors being properly weighed.

8. My reasons for so finding, as set out in detail hereafter, include my conclusion that the reliance by the Defendant on the case of SASC v Solomon Sankar was wholly misplaced. The said authority in no way supports the actions of the Defendant as to the propriety of their decision making process that resulted in the appointment of another person to Act as PIRO III and not the Claimant.

9. In addition, the following issues were taken into account in my determination of this claim, namely:

• • Whether in making the decision to appoint Lystra Parke ahead of, the Claimant, the Defendant:

  • ▪ Either failed to consider or gave insufficient weight to relevant factors and considered irrelevant factors.

  • ▪ Was unreasonable/irrational.

  • ▪ Acted unfairly.

• • And if so, what is the appropriate relief to be granted in the circumstances of this case?

10. The evidence, law and analysis leading to my conclusions will be addressed after providing a brief summary of the factual background to the Claim.

III. Background:

11. The factual matrix of this Claim is largely not in dispute save as to what was considered in making the challenged decision. The facts are set out in the Affidavit evidence filed by both parties and the closing written submissions filed by the Claimant. The Defendant failed to comply with the Court's directions to file written closing submissions. The background to the Claim as summarised from the available documents starts with the Claimant's history of having worked for decades exclusively in Personnel, Industrial Relations and Human Resources at the Corporation.

12. In October 1, 2016, the Claimant commenced her current stint as AO II (Ag). It was the position she was appointed to when the former AO II office holder Lystra Parke took the acting position as PIRO III ahead of her. The Claimant has been employed by the Corporation for approximately thirty-eight years since 1978, holding the following substantive positions in the PIRO stream, as shown on the Corporation's Organisational Chart:

• i. Clerk I on 1 January, 1980;

• ii. Clerk II on 16 October, 1995;

• iii. Clerk III on 29 September, 1999; and

• iv. PIRO I on 28 September, 2004.

13. She also held the following acting positions:

• i. Human Resource Officer (HRO) II from April, 2006 to 30 September, 2008;

• ii. HRO III from 1 October, 2008 to 30 June, 2014; and

• iii. PIRO III from 19 May, 2015 to 13 September, 2016.

14. The office of PIRO III became temporarily vacant in 2015 when the holder of the position commenced her pre-retirement leave. By circular dated 13^th July, 2015 the Chief Executive Officer (Ag.) (“CEO”) made recommendations to the Defendant that the vacancy should be filled by the Claimant, giving the following as reasons:

• “1) Ms. Chee has been acting in the position of PIRO III with effect from the 19^th May, 2015; and 2) Ms. Chee is the next most senior officer.”

15. The Claimant's acting appointment was approved by the Defendant by memorandum dated the 24^th August, 2015, taking effect from the 19^th May, 2015 to the 31^st December, 2015. Subsequently, on the 28^th January, 2016 the Defendant, by memorandum, approved the Claimant to continue acting as PIRO III from the period 1^st January, 2016 to the 30^th June, 2016.

16. By memorandum dated 3^rd August, 2016, the CEO of the Corporation wrote to the Defendant in relation to the filing of the position of acting PIRO III recommending the Claimant based on her experience in the position of PIRO I, which was her substantive position from the period 28^th September, 2004 until her appointment to the office of acting PIRO III which took effect on the 19^th May, 2015, a period of approximately ten years and seven months. The Claimant also had a track record of excellence in her performance appraisals for work done when she had acted as PIRO III.

17. The CEO's recommendation was not followed. Instead, on the 30^th September, 2016, there was verbal communication from the office of the Defendant to the CEO of the Corporation to the effect that the Claimant would now act in the position of AO II to accommodate Lystra Parke's acting appointment as PIRO III with effect from 3^rd October, 2016.

Difference/Similarities between AO II and PIRO Positions:

18. An important subject addressed by both parties is the nature of the position Lystra Parke held substantively and in which the Claimant is now acting for her, namely AO II, as compared with PIRO III. The parties' contentions are different in this regard. The Claimant says the positions are from separate streams and the functions therein differ. As such the experience of Lystra Parke as AO II and acting CEO is not as relevant as her own experience as PIRO I to act as PIRO III.

19. It is the Claimant's argument...