Deborah Patrick-Gardner v Jacqueline Mendez and Public Service Commission
| Jurisdiction | Jamaica |
| Judge | Morrison, J.,Lindo, J. |
| Judgment Date | 19 April 2018 |
| Court | Supreme Court (Jamaica) |
| Docket Number | 2016 HCV 03045 |
| Date | 19 April 2018 |
Supreme Court
Morrison, J
2016 HCV 03045
Mr. Hugh Wildman and Ms. Barbara Hines instructed by Hugh Wildman and Company for the claimant
Mrs. Nicole Foster-Pusey, QC., Ms. Carla Thomas and Mr. Andre Moulton instructed by the Director of State Proceedings for the defendants
Judicial Review - Decision to remove the claimant from the public service by way of retirement — Whether there was a right to be heard prior to the retirement — Certiorari — Order of prohibition — Permanent Injunction
I have read the judgment of my learned sister, Thompson-James, J. and am in agreement with her conclusions.
I will not forbear in offering my sincere appreciation to learned Counsel on both sides for their erudite labours in assisting this court.
Last, but by no means least, I seek only to add that our apparent failure to provide a more timely judgment was in no small measure due to our being overtaken by a series of supervening events and for which we tender our sincerest apologies.
THOMPSON-JAMES J: This is an application for Judicial Review by the claimant, Mrs. Deborah Patrick-Gardener, a public officer, seeking several administrative orders, including orders for certiorari, prohibition and mandamus, in respect of her removal, not only from her appointed post at the Court Management Services (CMS), but also from the Public Service by way of retirement.
The claimant is the duly appointed Principal Executive Officer of the office of the Court Management Services (CMS), an office established under the auspices of the Ministry of Justice to provide administrative support to the courts of Jamaica.
The 1st defendant is the Acting Chief Personnel Officer of the Office of the Services Commissions and the 2nd defendant is the constitutionally appointed body responsible for the provision of advice to the Governor General of Jamaica in respect of the appointment, removal and disciplinary control of public officers, pursuant to section 124 of the Jamaica (Constitution) Order in Council, 1962 (the Constitution).
The claimant was appointed by the Governor-General, on the advice of the Public Service Commission, as the first and only Principal Executive Officer of the CMS with effect from October 1, 2011, by letter dated September 28, 2011. In this post, she had responsibility for the establishment and management of the CMS which was mandated to provide administrative services for the Courts in the areas of:
She was required to report to the Chief Justice periodically in respect of the performance of her functions.
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a. Finance and accounts;
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b. Customer service and client services;
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c. Human resources and administration;
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d. Internal audit;
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e. Maintenance of Court facilities; and
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f. Information technology services.
Approximately two (2) years into her tenure, the claimant sought and was approved for study leave from the Public Service Commission to pursue a Bachelors of Laws (LLB) degree at the University of the West Indies. The terms of the approval were contained in a letter dated July 16, 2013, from the then Chief Personnel Officer, Dr. Lois Parkes, to the Chief Justice, the Honourable Mrs. Justice Zaila McCalla, in which the claimant was granted thirty-six (36) months study leave with effect from September 2013. Included in these terms, were the requirements that the claimant contribute her leave entitlement for at least one (1) year's service, or accept no pay for any deficit thereof; receive additional leave on full pay up to the approved period of two (2) years; and pursue the remaining period of study without pay upon further approval from the Ministry of Finance and Planning. It was also provided that if the claimant were to complete her studies earlier than projected, she was to resume duties as early as possible after the completion date, and the resumption date was to be reported to the Office of the Services Commissions.
It is the claimant's evidence that her decision to embark on her course of study arose ‘as a consequence of the direction’ of the Chief Justice, who suggested that she ‘embark on a course of legal training in order for her to have a better appreciation of the functions of the court system’. This evidence has not been challenged by either party, nor has the claim been otherwise refuted.
The claimant began her studies September 11, 2013, and successfully completed the programme in or around September 2015, having completed the program in two (2) years instead of the usual three (3). By letter dated September 9, 2015, the claimant advised the Chief Personnel Officer of her early completion of the programme and that she had resumed duties September 4, 2015. In the same letter, she proposed to immediately proceed on recreational leave with effect from September 4, 2015, the application form for which was attached to the letter. She also indicated that she had applied to the Public Service Commission for paid study leave in order to matriculate to the Norman Manley Law School, and was awaiting a response in this regard.
By letter dated September 24, 2015, the Acting Senior Director of Human Resource Management and Administration of the CMS, Mrs. Bobette Dawkins, advised the claimant that approval had been given for the grant of study leave without pay for a period of twenty-four (24) months to facilitate her studies at the Law School.
By letter dated September 25, 2015 directed to the Chief Personnel Officer, the claimant advised that she had resumed duties on that same date but was unable to access the Principal Executive Officer's office as it was still being occupied by the officer who had been acting in the post during her absence. As a result she was unable to perform her duties.
The claimant again sent a letter, dated September 28, 2015, directed to the Chief Personnel Officer, indicating that she had not requested unpaid study leave and was not in a position to accept that offer. In that letter, she also advised that she was again unable to access her assigned office that same day and was therefore unable to perform any duties related to her appointed post. Further, she indicated that only one third of her salary had been lodged to her account for the month of September.
On that same date, by email, the Chief Personnel Officer advised the claimant that, on the recommendation of the Chief Justice, approval had been given for her to be redeployed to the Ministry of Justice with effect from September 29, 2015, until further notice, in accordance with Staff Order 1.9.3. The letter also stated that she would be required to carry out duties relating to the co-ordination of the Justice Reform Programme, along with any other duties assigned by the Permanent Secretary.
The reasons for this decision to redeploy the claimant were set out in a further letter on that date from the Chief Personnel Officer to the claimant. It outlined that the claimant had been granted three years study leave and so her resumption had not been anticipated before September 2016; the final decision in respect of the claimant's application for additional paid study leave to commence in September 2015 had not been received until September 24, 2015, the date her recreational leave had expired, and that this was the normal time frame within which such a matter would be considered by the Public Service Commission and the Governor-General, given the time that her application had been received; arrangements would not have been in place in anticipation of her resumption Friday, September 25, 2015; and the Justice Reform programme, of which the Court Management Services was a component, was at a critical juncture. In all the circumstances and in the interest of the continued smooth operation of that entity, a change of leadership at the time would be unsettling.
The claimant asserts that she reported for work at the Ministry of Justice as directed on September 29, 2015, and was informed in a meeting between herself, Ms. Christine Gobern, the Senior Director of Human Resources Management and Mrs. Donna Parchment Brown, the then Director of the Justice Reform Implementation Unit, that she was to report to Mrs. Donna Parchment Brown, who was her junior. She also asserts that it was later confirmed to her by the Permanent Secretary, Mrs. Carol Palmer, that the post to which she was redeployed was related to a SEG-5 post, which is two (2) levels below her official appointment. During this period of redeployment, the claimant continued to receive the salary and emoluments attached to the post of Principal Executive Officer.
The claimant further states that on October 1, 2015, she met with Dr. Parkes and indicated her concerns regarding her deployment. These concerns were put in writing in a letter dated October 16, 2015, to Dr. Parkes seeking to confirm their discussions of October 1, 2015 and a telephone conversation between both parties on the same date of the letter. In the letter, the claimant indicates that her concerns were that her deployment was inconsistent with the Public Service Regulations and Staff Order 1.9.3, in that the position to which she had been deployed was not equivalent to that of her appointed post but was rather that of a junior officer. The claimant also noted that Dr. Parkes had given an undertaking to raise her concerns with the Public Service Commission at its October 21, 2015 meeting, and asked that she be deployed to an equivalent position in accordance with the Public Service Regulations and the Staff Orders.
By letter dated January 8, 2016, the claimant wrote to Dr. Parkes reminding her of her undertaking to raise the claimant's concerns with the Public Service Commission and noting that she still had not received a response in relation thereto...
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