Peter Neverson v The Public Service Commission
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor J Donaldson-Honeywell |
| Judgment Date | 06 April 2022 |
| Neutral Citation | TT 2022 HC 078 |
| Docket Number | Claim No. CV2021-00258 |
| Court | High Court (Trinidad and Tobago) |
the Honourable Madam Justice Eleanor J Donaldson-Honeywell
Claim No. CV2021-00258
IN THE HIGH COURT OF JUSTICE
Ms. Ariel Ali, Attorney-at-Law for the Claimant
Ms. Nadine Nabie, Ms. Michelle Benjamin, and Ms. Zara Smith, Attorneys-at-Law for the Defendant
This claim for judicial review challenges the decision of the Public Service Commission, (“the Defendant”), not to promote Mr. Peter Neverson, (“the Claimant”), to the office of Divisional Fire Officer (“DFO”) from 4 February 2016 and thereafter. The Claimant also challenges the criteria used for promotion to the said office of DFO.
The Claimant seeks the following reliefs:
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a. A declaration that the Defendant's decision to bypass the Claimant for promotion at every opportunity from 4 February 2016 to present is unlawful and ultra vires.
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b. A declaration that the requirement by the Defendant that applicants must possess the International Command Course for promotion to the position of Divisional Fire Officer is unlawful and ultra vires and contrary to the Fire Service (Terms and Conditions of Employment) Regulations 1998 found in the Fire Service Act Ch 35.50 at Regulations 9(2) and 9 (3).
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c. An order of Mandamus compelling the Defendants to promote the Claimant to the post of Divisional Fire Officer with effect from 4 February 2016.
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d. An order that the Defendants do pay the Claimant the difference in salary and benefits from that of Assistant Divisional Fire Officer to that of Divisional Fire Officer from 4 February 2016 to present.
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e. Damages inclusive of exemplary and/or aggravated damages.
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f. Costs.
The facts as to the chronology of events preceding this claim are essentially agreed. However, the issues as to what the Defendant's position was as to the actual criteria for the position of DFO and the basis on which the Defendant was not eligible are in dispute. The chronology is set out in four Affidavits, three sworn by the Claimant on 12 January 2021, 28 May 2021 and 28 September 2021, respectively, and one sworn on 30 April 2021 by Deputy Director of Personnel Administration, Helen Warner, on behalf of the Defendant.
The Claimant holds the substantive office of Assistant Divisional Fire Officer (“ADFO”). He has been acting continuously in the office of DFO since 1 September 2014. A Circular Memorandum dated 20 November 2014 advertised vacancies in the office of DFO.
The Claimant was interviewed for the office of DFO on 7 December 2015. On 10 March 2016, the Claimant received a letter from the Director of Personnel Administration (“ DPA”) indicating that he was not eligible for promotion to the office of DFO as he did not possess the International Command Course (“I DCC”). The letter further stated that he was interviewed in error.
The Claimant outlines instances of his applications to complete the IDCC on occasions prior to his interview. These were unsuccessful due to administrative errors. He further highlights his knowledge that four other officers, who like him had not completed the IDCC course, were promoted to the DFO rank in around 2010 to 2011.
On 4 February 2016, an officer who also had not completed the IDCC, No. 1712 Sieunarine Ramsaran, was promoted to the rank of Divisional Fire Officer with effect from 4 February 2016.
The Claimant completed the said IDCC course in July 2017 together with No. 1712 Sieunarine Ramsaran. He felt that he should have then been promoted as he met what he saw as the only remaining outstanding criteria, the IDCC. However, he heard nothing from the DPA.
The Claimant wrote to the Permanent Secretary of the Ministry of National Security and the DPA by letter dated 24 May 2018 indicating that he was informed by the PSC that he could not be promoted to the rank of DFO because he did not possess the IDCC. The Claimant also mentioned in the letter that, in 2010, the officers who did not complete the IDCC were nonetheless promoted to the rank of DFO. He also complained about the officer junior to him who was promoted to DFO without the IDCC.
The Chief Fire Officer was asked by the DPA for his position on the matter. In a memorandum dated 4 March 2019 to the Director of Personnel Administration, the Chief Fire Officer stated:
“ The present establishment of the Fire Service shows that there are five (5) vacancies in which Assistant Divisional Fire Officers can be promoted to the rank of Divisional Fire Officer, notwithstanding, only two (2) Officers currently satisfy the criteria of completing the International Divisional Command Course (IDCC). These Officers are No. 1819 Assistant Divisional Fire Officer Peter Neverson and No. 1796 Assistant Divisional Fire Officer Francis Charles, both of whom have been acting continuously as Divisional Fire Officers for a prolonged period.”
The memo further stated:
“I have noted that these Officers were denied opportunities of being promoted to the rank of Divisional Fire Officer owing to them not satisfying the criteria of completing the IDCC. Additionally, these Officers were by-passed for promotion by their junior, No. 1712 Sieunarine Ramsaran who was equally circumstanced but yet was promoted Divisional Fire Officer on 4th February 2016”
“I recommend that the promotion in favour of No. 1819 Acting Divisional Fire Officer Peterson Neverson (erroneously spelt) be expedited”.
The Claimant was not promoted despite this position stated by the CFO. He went on to complete a further course, the International Brigade Command Course (“the IBCC”) in July 2019.
The Claimant sent pre-action letters to the then DPA, Ms. Debra Parkinson, dated 26 May 2020 and 28 July 2020 respectively.
The DPA responded by letter dated 2 September 2020 (attached to the Claimant's Affidavit as “PN14”). Therein, the Claimant was informed that he did not possess the International Command and Fire Prevention Course (“the ICFP”) and therefore should not have been interviewed. Further, the Order of Merit List (“the 2016 OML”) comprised persons who had scored 84% and higher in the interview. The Claimant had only scored 79.7% and did not meet the grade to be placed on the 2016 OML.
The Defendant's Affidavit in response to the filed Claim took the case for the Defendant further than indicated in the Pre-action response. In the Affidavit filed by Helen Warner, the contention is that in all prior correspondence by the DPA, references to the Claimant not being promoted because he had no IDCC qualification were erroneous. Instead, the only factual reason for the decision not to promote him was that he did not meet the required grade to be placed on the OML.
Ms. Warner refers, in her Affidavit, to the specific documentation governing the criteria for the position of DFO, to bring to the attention of the Court the fact that the IDCC is not one of the requirements for that post. In particular, a copy of the Job Specification and Description document is attached as H.W.2 to her Affidavit.
The Defendant's Affidavit further posits that there have not been repeated instances of non-promotion of the Claimant after 2016. This is so because, although the position was advertised in 2020, no DFO promotion exercise took place from that date to the present time.
The issues to be determined are whether:
a. Whether the IDCC course is a requirement for the promotion of an officer to DFO; and if so, whether such requirement is unlawful and ultra vires and contrary to the Fire Service (Terms and Conditions of Employment) Regulations 1998 found in the Fire Service Act Ch 35:50 at Regulations 9(2) and (3);
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a. the IDCC course is a requirement for the promotion of an officer to DFO; and if so, whether such requirement is unlawful and ultra vires and contrary to the Fire Service (Terms and Conditions of Employment) Regulations 1998 found in the Fire Service Act Ch 35:50 at Regulations 9(2) and (3);
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b. the Defendant decided to bypass the Claimant for promotion at every opportunity from 4 February 2016 to present and, if so, whether the decision is unlawful and ultra vires;
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c. the Claimant is entitled to be promoted to DFO; and
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d. the Claimant is entitled to damages.
Regulation 9(2) and (3) of the Fire Service (Terms and Conditions of Employment) Regulations 1998 of the Fire Service Act Chap. 35:50 provide as follows:
“(2) A Fire Station Officer or a Fire Equipment Supervisor in order to be a candidate for appointment to the office of Assistant Divisional Fire Officer shall possess one of the following qualifications:
(a) passes in five subjects in the Caribbean Examinations Council Examinations including a pass in the subject of English Language at General Proficiency Grade I, II, III or Basic Proficiency at Grade I and in the other subjects at the General Proficiency Grade of I, II or III or the Basic Proficiency Grade of I or II, and passes in two (2) subjects at “Advanced” level in the General Certificate of Education Examination;
(b) a General Certificate of Education with passes at “Ordinary” level in not less than five subjects including English Language and passes in two subjects at “Advanced” level;
(c) the...
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