Ian Green v The Public Service Commission

• Jurisdiction: Trinidad & Tobago
• Judge: I. Archie C.J.
• Judgment Date: 16 December 2022
• Neutral Citation: TT 2022 CA 49
• Docket Number: Civil Appeal No. P025 of 2017
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

Panel:

I. Archie, C.J.

N. Bereaux, J.A

M. Holdip, J.A.

Civil Appeal No. P025 of 2017

Claim No: CV2015-02467

Between

Ian Green

Appellant/Claimant

and

The Public Service Commission

Respondent/Defendant

Appearances:

Mr. Kenneth Thompson for the Appellant

Mr. Russsell Martineau S.C. and Ms. Nadine Nabie instructed by Ms. Michelle Benjamin for the Respondent

Delivered by I. Archie C.J.

I. Archie C.J.

PREAMBLE

Appointments and promotions in the Public Service have been the subject of much contentious litigation for many years. For the most part, this arises from commonly held misconceptions about the legislative framework and constitutional premises that underlie the process. The roles and powers of stakeholders and actors are often misunderstood and conventions and practices that have no legal basis have been etched into what has become a dysfunctional landscape.

Injustices can and do arise that are not necessarily the result of malicious intent. The decisionmaking process is sometimes obscure even to the decision makers. This breeds a sense of mistrust and has the potential to undermine public confidence in the Service Commissions.

This judgment, explores in some detail key concepts and principles pertinent to the discharge of the Service Commissions' functions and seeks to clarify the roles of relevant parties for future guidance.

INTRODUCTION

1 This is the appeal of Ian Green (Claimant/Appellant) against the decision of the Honourable Justice Frank Seepersad dated the 14th day of December, 2016 to dismiss the Appellant's Application for Judicial Review filed on the 31st day of July 2015.

2 The central issues for discussion in this appeal are:

• i. Whether the decision of the Public Service Commission [“the PSC”] to rely on view of the Chief Personnel Officer [“the CPO”] in denying the Appellant promotion was irrational and/or in breach of natural justice.

• ii. Whether Regulation 8 of the Fire Service (Terms and Conditions of Employment) Regulation 1998 [“Regulation 8“] (which prescribes minimum qualification requirements for appointment to the office of Fire Station Officer), if given a literal interpretation, contravenes the principle of separation of powers and/or constitutes an unjustifiable interference in the performance by the Public Service Commission of its constitutional function of appointing public officers on promotion. While this issue was not clearly articulated in the pleadings, it formed part of the deliberations at the hearing of the appeal. It became necessary to explore the interplay between Regulation 8, the Public Service Regulations [“PSC Regs”] and the Constitution.

3 For the reasons that are explained below the Court has determined that:

• i. The PSC erred and acted irrationally when it placed reliance on a view expressed to a third party by the CPO in respect of the Appellant's qualifications and by failing to take proper account of the other material which was in its possession;

• ii. On a proper interpretation of the meaning, purpose and effect of Regulation 8, it is not unconstitutional but it cannot bind the PSC in the exercise of its Constitutional function. The PSC must have regard to it and should not arbitrarily depart from it but must form its own independent view of applicants' qualifications after considering the views of the Chief Fire Officer [“the CFO”];

• iii. The conclusion reached at ‘i’ above is not dependent on the correctness of the view expressed at ‘ii’. The applicable Regulatory framework under the PSC Regs. was not followed and the process followed by the PSC was irreparably flawed irrespective of whether Regulation 8 was binding on the PSC.

BACKGROUND

4 At the time these proceedings were instituted, the Appellant held the substantive rank of Fire Sub-Station Officer (“FSSO”) and was acting in the post of Assistant Divisional Fire Officer (“ADFO”) (a position two stations above his substantive rank and one above the rank of Fire Station Officer (“FSO”), the position to which he sought promotion). He had previously been interviewed as a prospective candidate for promotion to the rank of ADFO a position that normally requires the candidate to have held the office of FSO or Fire Equipment Supervisor 1. The Appellant has since been required to compulsorily retire from the Fire Service upon attaining the age of fifty-five.

5 The Appellant is the holder of a Master's Degree in Human Resource Management and a Post-Graduate Diploma in Human Resource Management from the Arthur Lok Jack Graduate School of Business, as well as an Associate's Degree in Management from the College of Science, Technology and Applied Arts of Trinidad and Tobago (COSTAATT). At no time did the Appellant ever sit any of the job-related examinations that are specified in Regulation 8(2) and (3) for promotion to the rank of FSO. These are the English and Management Studies examination and the Management Studies examination. He did not hold a Graduate Diploma from the Institute of Fire Engineers which was also specified as a requirement for promotion to the rank of FSO in accordance with Regulation 8.

6 However, Regulation 8(1)(b) permits, in lieu of the requirement to hold the Graduate Diploma, recognition of an “equivalent related qualification as determined by the Chief fire Officer” [“CFO”] after consultation with the Permanent Secretary and the Chief Personnel Officer”. [my emphasis] Disposition of the issues raised by this appeal requires the Court to consider, among other things, three fundamental questions.

7 The first is whether it can confidently be said, based on the available evidence, that the Appellant possessed such an equivalent qualification.

8 The second matter for consideration is whether any ‘determination’ and recommendation by the CFO in that regard is final and binding on the PSC.

9 Finally we must consider what is meant by “consultation” and whether the view of the CPO can override a recommendation from the CFO.

10 Those questions require, in turn, an examination of the meaning and effect of Regulation 8 and the Section of the Fire Service Act under which it is made. Section 8(1) appears to give a broad discretionary power to the CFO that is ordinarily reserved for Service Commissions. However, there is no statutory provision that gives the CPO any role in advising the PSC in the promotion process.

11 In 2006 the Appellant applied to the CFO under Regulation 8 (1) (b) to have his PostGraduate Diploma in Human Resource Management accepted as an “equivalent related qualification”. As part of that decision-making process, the CFO is required “to consult” with the Permanent Secretary, Ministry of National Security (“the PS”) and the CPO. By memorandum dated July 12, 2006 to the PS, the CFO indicated that “subject to the concurrence” of the PS and the CPO he had no objection to accepting the Post-Graduate Diploma as an equivalent, related qualification. The language used raises the question whether the consultative process was flawed by virtue of the CFO's apparent surrender of his independent exercise of discretion.

12 By memorandum in reply dated September 28, 2006 the PS concurred with the recommendation of the CFO to accept the Post-Graduate Diploma as an equivalent qualification. However, by memorandum dated December 15, 2006 addressed to the PS, the CPO objected to the equivalency, indicating that the Post-Graduate Diploma could not be considered as an equivalent related qualification in accordance with Regulation 8 (1)(b). The CPO took the view that it did not address the “technical aspects” of the job relating to firefighting and the Fire Service. No detailed reasons were ever given for that conclusion nor did he ever specify what standards, specific knowledge or competencies he had considered.

13 Nevertheless, the CPO advised that he would have no objection to the Appellant being granted an exemption from writing the Management Studies examination under Regulation 8(3). It appears that a practice has arisen in this regard although the Court was not pointed to any regulatory underpinning. There is no dispute at this stage about whether the grant of an exemption from that requirement was justified, but there is some confusion surrounding the interpretation of the correspondence relating to exemption from the Regulation 8 criteria that will be addressed later in this judgment. However, there is no reason in law or in principle (and none has been advanced) why the same qualification cannot be considered separately for exemption and qualification under both Regulation 8(1)(b) and 8(3).

14 It is the Appellant's case that by virtue of the exemption granted, he is qualified to be promoted to the office of FSO. 2 That conflation of Regulation 8(1) and 8(3) is a thread that runs through this case and appears to be the source of some confusion in the minds of persons involved, including the CFO at the time, Mr. Skeete.

15 By memorandum dated May 11, 2007 purportedly issued on behalf of the CFO 3 and addressed to the Appellant it was stated that, after consultation with the PS and the CPO, his Post-Graduate Diploma could not be considered as an equivalent related qualification as it did not address the technical aspects of the job related to firefighting and the Fire Service. The relevant technical requirements were not stated.

16 In the same letter of May 11, 2007, the Appellant was also advised that, after consultation with the PS and the CPO, he had been exempted from writing the Management Studies examination referred to in Regulation 8(3) of the Fire Service Regulations.

17 Notwithstanding, in 2013, the Appellant's name was included by a succeeding CFO in a list of eligible persons recommended for promotion to the rank of FSO. The obvious inconsistency has given rise to the dispute in this case.

18 The Appellant claims that he was not aware...