Deborah Patrick Gardener v Colette Roberts Risden Permanent Secretary in the Ministry of Labour and Social Security
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton, J. |
| Judgment Date | 27 April 2023 |
| Docket Number | CLAIM NO. SU2022CV00726 |
| Court | Supreme Court (Jamaica) |
[2023] JMSC Civ 100
Palmer Hamilton, J.
CLAIM NO. SU2022CV00726
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil Practice and Procedure — Administrative Law — Part 56 of the Civil Procedure Rules — Application for leave to apply for judicial review — Threshold in Sharma v Brown-Antoine and Others — Illegality — Section 125 of The Constitution — Establishing reasonable cause to remove or otherwise discipline — Public Service Regulations, 1961 — Breach of Natural Justice — Unreasonableness/Irrationality — Improper Purposes — Injunction — Part 17 of the Civil Procedure Rules — American Cyanamid Principles — Whether there is a serious issue to be tried — Whether damages would be an adequate remedy for the Applicant — Whether the undertaking in damages is adequate protection for the Respondents — The balance of convenience
Ms. Carlene Larmond K.C., Mr. Harrington McDermott and Ms. Giselle Campbell instructed by Patterson Mair Hamilton on behalf of the Applicant
Ms. Lisa White and Ms. Kristina Whyte instructed by The Director of State Proceedings on behalf of the Respondent
The Applicant is seeking leave to commence judicial review proceedings for a prerogative order of certiorari quashing the decision of the Permanent Secretary in the Ministry of Labour and Social Security. The Applicant is also seeking interim injunctive relief pending the hearing of a claim for judicial review. The Applicant is relying on several grounds which were summarized by King's Counsel Ms. Larmond as follows:
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(a) The Respondent acted ultra vires The Constitution and the Public Service Regulations, 1961 when she purported to bar the Applicant from performing her functions of Chief Technical Director, Labour — Grounds (i) and (v);
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(b) The Respondent breached the rules of Natural Justice in not affording the Applicant an opportunity to be heard prior to removing the Applicant from performing the functions of Chief Technical Director, Labour — Ground (ii);
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(c) The Respondent acted unreasonably/irrationally as she took into account irrelevant considerations and failed to consider relevant matters in: (i) arriving at her decision to remove the Applicant from performing the functions of Chief Technical Director, Labour; and (ii) purporting to reassign the Applicant to duties at the Jamaica Productivity Centre — Grounds (iii) and (iv); and
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(d) The Respondent exercised her discretion for an improper purpose when she purported to remove the Applicant from performing the functions of Chief Technical Director, Labour — Ground (vi).
The Application came on for hearing before Pettigrew-Collins J and after reviewing the file noted that it would appear that there are arguable grounds for judicial review with a realistic prospect of success. She made an Order that there should be an inter partes hearing given that the application includes a claim for immediate interim relief. This was done pursuant to Rule 56.4(3) (b) of the CPR.
The Applicant, who is no stranger to the Courts and working in the Public Sector, is an Attorney-at-Law and was at all material times the Chief Technical Director, (nomenclature) Labour (hereinafter referred to as ‘CTDL’) in the Ministry of Labour and Social Security (hereinafter referred to as ‘the MLSS’ or ‘the Ministry’). She was assigned to this post by the Public Service Commission (hereinafter referred to as ‘the PSC’) in 2018 in accordance with the decision of the Full Court. In 2016, the Applicant brought a claim for Judicial Review against the Acting Chief Personnel Officer of the Office of the Services Commission and the PSC. An Order of certiorari was made to quash the decision purporting to retire the Applicant and the Court stated that she is to remain as a public servant as long as she is willing and able to provide service, or unless she is removed in a lawful manner. (see Deborah Patrick-Gardener v Jacqueline Mendez and Public Service Commission [2018] JMFC Full 2). This is the post that has now brought the Applicant back before the Courts.
The Applicant in her Affidavit outlined her job description for the post of CTDL and noted that it was second only to the post of Permanent Secretary within the Ministry's hierarchy. The Applicant averred that she became the target of a combination of fabricated accusations and frivolous grievance complaints aimed at undermining her in the post.
The Applicant observed that her work as CTDL was structured in a manner that required her to report to the Director, Industrial Relations and Allied Services (hereinafter referred to as ‘DIRAS’), when it should have been the DIRAS who was to report to her. In fact, the DIRAS was reporting directly to the Permanent Secretary without reference to the Applicant. There were even attempts by the Permanent Secretary to hold the Applicant accountable over areas which were managed exclusively by the DIRAS, in a context where information was withheld from her and important decisions regarding the labour portfolio were being taken without her. The effect of this, the Applicant further averred, was to remove her supervision and oversight over the division's operations for which she was responsible by virtue of her job description. It was not only the DIRAS who was not reporting to her when they should have been. The Applicant averred that the Permanent Secretary would direct junior staff in the management hierarchy, bypassing the Applicant.
There was even an attempt by the Permanent Secretary to remove the Applicant from an audit committee which proved futile. After this the Permanent Secretary embarked on a, … “course of coercive and retaliatory actions…this included false and malicious accusations,” towards and against the Applicant. There was one instance where the Applicant was relocated from the executive suite office which had accommodated the CTDL that preceded her to an office of an entry level officer due to renovations being undertaken. The Applicant averred that the accommodation was totally inadequate and she relocated to another office pending the completion of the renovations. Once renovations were complete, the Applicant was not returned to her original office but to a different space which was inferior to the original office and noticeably inferior to spaces afforded to junior officers in the MLSS. The Applicant further averred that her right to privacy of communication was violated when the Permanent Secretary gave instruction to junior officers to enter her locked office on a holiday, when she was off work, and remove her files and personal belongings to the new inferior space. Notice was not given to the Applicant and therefore she could take no security measures to secure her personal belongings. The Applicant was even denied entry to where the renovated executive suites were located at the MLSS.
In December 2019, the Applicant received a memorandum from the Permanent Secretary which concerned her areas of responsibility. The memorandum restructured the areas of the Applicant's responsibility and removed direct responsibility for matters related to industrial relations and the Industrial Disputes Tribunal. The memorandum also stated that the restructuring of the Applicant's duties became necessary due to the Applicant's apparent un-involvement and lack of guidance in industrial relations related activities and is compounded by the interpersonal challenges between the Applicant and the DIRAS. The Applicant averred that she was not consulted by the Permanent Secretary nor did she receive a hearing before her duties were stripped from her. The organizational chart of the MLSS was revised and it showed that this restructuring stripped the Applicant of 12 of the 14 programme areas that were under her with the DIRAS was now performing majority of the CTDL's functions. The DIRAS now reported directly to the Permanent Secretary. The Applicant averred that the she verily believes that the Permanent Secretary's actions were meant to degrade and strip her of the dignity of her office and was done in breach of her constitutional right to equality before the law.
The Applicant in 2020 reviewed her personnel file and discovered a letter from the Permanent Secretary to the Registrar of the Medical Council of Jamaica which “bore an unmistakable implication that the doctor and I were accomplices in committing some dishonesty or in doing some wrong that was deserving of sanction…” The Applicant averred that she verily believes that this letter served to lower her before well thinking individuals and was defamatory. This correspondence was placed on the Applicant's file without her knowledge in breach of section 2.2 (iii) of the Staff Orders for the Public Service.
Several complaints were made by the Applicant to the PSC concerning the conduct of the Permanent Secretary and she was told that the matter would be examined. In relation to the correspondence the Chief Personnel Officer at the Office of the Services Commission (hereinafter referred to as ‘the OSC’) sent a letter to the Applicant noting that they will await investigation and decision of the Medical Council of Jamaica in this matter.
The Applicant observed that she was hardly assigned any work and was unable to obtain support to perform her duties. Salary increments, which the Applicant was entitled to by virtue of her appointment and seniority as a public officer, have been withheld. Due to an injury which the Applicant suffered while undertaking official duties, she was unable to access her office and attend meetings as she was unable to physically reach the 6 th floor at the MLSS due to the lifts being out of service. The Applicant's repeated...
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