Webster et Al v Attorney General

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mendonca, J.A.,Jamadar, J.A.,Bereaux, J.A.
• Judgment Date: 31 October 2012
• Neutral Citation: TT 2012 CA 23
• Docket Number: Civil Appeal 86 of 2008; H.C.A. 3562 of 2003
• Date: 31 October 2012

Court of Appeal

Mendonca, J.A.; Jamadar, J.A.; Bereaux, J.A.;

Civil Appeal 86 of 2008; H.C.A. 3562 of 2003

Webster et al

and

Attorney General

Appearances:

R. Maharaj, SC, and V. Maharaj for the appellants

F. Hosein, SC and R. Thurab for the respondent

Constitutional Law - Fundamental rights and freedoms — Freedom from inequality of treatment — Protection of the law — Whether terms and conditions of appellants' service were unconstitutional.

Mendonca, J.A.

I agree with the judgment of Bereaux, J.A. and have nothing to add.

A. Mendonça

Justice of Appeal

Jamadar, J.A.

I too agree with the judgment of Bereaux, J.A. and have nothing to add.

P. Jamadar

Justice of Appeal

The Issues

Bereaux, J.A.

1 Two issues arise in this appeal:

• (a) Whether the Executive has discriminated against the appellants who are past and present members of the Special Reserve Police, by failing to equate their terms and conditions of service with those of regular police officers, contrary to section 4(b) and (d) of the Constitution;

• (b) Whether the appellants have been denied the protection of the law, contrary to section 4(b) of the Constitution by the failure of the Minister of National Security to promulgate regulations governing their terms and conditions of service.

2 Before Moosai, J. they sought declarations to the following effect; that by not equating their terms and conditions of service with those of regular police officers, the State had breached section 4(b) and 4(d); that by failing to make regulations pursuant to section 22 of the Special Reserve Police Act, Chap 15:03, in terms similar to those of the Police Service Regulations Chap. 15:01, the State (through the Minister of National Security) had breached their rights under sections 4(b) and 4(d) of the Constitution of Trinidad and Tobago.

They also sought consequential monetary compensation for the contravention of their rights including exemplary damages.

3 The trial judge answered both questions in the negative and the appellants now appeal against this decision. In my judgment, the judge was correct. There was no breach of the appellants rights under section 4(b) and (d) in respect of issue (a) and no breach of the appellants rights to the protection of the law in respect of issue (b).

Relevant Facts and History

4 The following facts are not in dispute. The appellants are past and present members of the Special Reserve Police established under the Special Reserve Police Act Chap. 15:03 (“The Act”). Section 4(2) of the Act provides for three categories of Special Reserve Police; full time, part time, and temporary. Full time refers to officers whose duties augment the shifts of regular police officers. Special Reserve Police Officers (“SRPOs”) who are employed full time, usually work for eight hours per day for five days per week. SRPOs who are temporary, work as and when required. SRPOs who are employed part time work sixteen hours per month, each tour comprising a period of four hours.

5 The Special Reserve Police Service was formed to provide a body comprising persons who were otherwise employed but who out of civic responsibility were prepared to assist the police by rendering part time service. However, due to the increasing demand for manpower in the Trinidad and Tobago Police Service, without corresponding increases in its sanctioned strength, SRPOs were called out on what appeared to be a permanent basis instead of full-time or temporary service, as contemplated by the Act. During this time no regulations were made in relation to the Special Reserve Police for inter alia the organization of the Special Reserve Police, although power to make such regulations was conferred on the Minister by section 22(1) and (2) of the Act.

6 On 29th October, 1998, the Cabinet of Trinidad and Tobago agreed that regulations be made to give effect to the Act. In the process of preparing the regulations however, it became clear that those SRPOs who had been on virtual permanent duty would be disadvantaged when the regulations were made because such permanence was not envisaged when the Act was passed.

7 The Cabinet also decided that the practice of utilizing SRPOs for extended periods on a full time basis should be discontinued. The decision meant that SRPOs would no longer be employed full time. The Cabinet also agreed that those SRPOs who had been continuously engaged, full time, for a period of over 2 years (as at 1st August, 2000) were eligible for permanent appointment into the regular police service.

8 Of the one thousand one hundred and ten (1,110) police officers in the Special Reserve Police Service at the time, six hundred and ninety-six (696) had been on full time duty for periods in excess of two years. But because of the difference in qualification requirements for the regular police service and because of certain “untenable employee relations issues”- which would arise because of it, the decision was also made that –

• (1) these SRPOs be absorbed into the police service at the rank of Police Constable subject to the meeting of certain specific criteria by the candidates in question.

• (2) a special package would be offered to those who were terminated or who declined the option of absorption. This package was based on a formula provided under section 18(3) of the Retrenchment and Severance Benefits Act 1981 with a 20% enhancement.

• (3) SRPOs who accepted the package would no longer be eligible for employment into the Special Reserve Police Service.

• (4) those SRPOs who were absorbed and who held the ranks of Corporal and Sergeant would be paid a taxable allowance equal to the difference between what they were paid as salary as a police constable and what had been paid as Special Reserve Police Corporal or Sergeant. This allowance would also be taken into account in computing their superannuation benefits. This allowance would also be subsumed into their salary as police constable when the salaries of police constables were increased.

9 Special training arrangements were made for those SRPOs who were absorbed into the regular service, in place of the academic, physical and age requirements which ordinarily obtain for entry into the regular police service. SRPOs who were fifty-five years and over were not to be absorbed into the regular police service because the retirement age for regular police constables was fifty-five years. Absorption commenced in or about October 2000 and ended in or about June 2001.

10 This motion was filed on behalf of five hundred and ninety two (592) applicants. Of these applicants, three hundred and thirty four (334) were granted leave to discontinue. The contents of the affidavits of each applicant in this claim, in their respective categories, are identical, subject to personal details. To avoid duplication, the record of appeal contains one sample affidavit from each category. Some SRPOs who were granted leave to discontinue are applicants in two other pending actions which were filed for the same relief on the same or substantially the same facts.

11 These two actions have been stayed, by consent, to abide the final determination of this action.

12 The appellants set themselves into six categories. The fifth category is no longer relevant to this appeal. The 1st to 10th named appellants (“the first category of appellants”) are persons now employed as part-time members of the Special Reserve Police and are called out on part-time duty only. The 11th to 35th named appellants (“the second category of appellants”) are persons employed as part-time members of the Special Reserve Police but who are called out on full-time duty. The 36th to 468th named appellants (“the third category of appellants”) are former members of the Special Reserve Police who were absorbed into the police service.

13 The 469th to 544th named appellants (“the fourth category of appellants”) are former members of the Special Reserve Police, who, pursuant to the Cabinet decision, were summarily retired from the Special Reserve Police upon attaining 55 years of age (the age of retirement of Second Division Police Officers in the Police Service). They were paid a separation package calculated at one month's salary for every year of service plus a 20% enhancement, without pension. The 563rd to 592nd named appellants (“the sixth category of appellants”) are former members of the Special Reserve Police, who before the Cabinet decision, retired compulsorily from service at age 60 and were paid an ex gratia “compassionate” gratuity. I have struggled to come to terms with the basis of their claim and the reasons for their joining in this action.

14 Section 22(1) of the Act provides for the making of regulations to give effect to the provisions of the Act. Subsection (2) goes on to specify what those regulations may provide for. The section is more fully addressed at paragraphs 35 et seq. The Act does not however make express provision for the payment of benefits of any kind to SRPOs. Provision for the payment of sickness, injury and disability benefits for SRPOs were made in sections 21(1) and 21(2) of the Special Reserve Police Ordinance Ch 11 No. 3 (1950 Rev. Ed.) by which the Special Reserve Police Force was originally established. Provision was also made in section 20(2) of the Ordinance for payments to be made to SRPOs for their attendance at parades or drills. These sections, along with section 12 of the Ordinance (which provided for the provision to the SRPOs of a manual setting out the policies and duties of an SRPO as well as for the provision of uniforms and equipment) were repealed by Act No. 38 of 1967.

15 The necessity for regulations to govern, inter alia, the benefits of the appellants, including those previously conferred by these repealed sections, was then provided for in what is now section 22(1) and (2) of the Act. Section 22(4) of the Act however...