Faith Webster v The Public Service Commission

• Jurisdiction: Jamaica
• Judge: Anderson K., J
• Judgment Date: 12 May 2017
• Neutral Citation: [2017] JMSC Civ 69
• Docket Number: CLAIM NO. 2014 HCV 03277
• Court: Supreme Court (Jamaica)
• Date: 12 May 2017

[2017] JMSC Civ 69

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2014 HCV 03277

Between

Faith Webster

Claimant

and

The Public Service Commission

Defendant

Mr. Douglas Leys, Q.C. and Ms. Kimone Tennant, instructed by LeySmith Attorneys-at-Law, for the Claimant

Ms. Althea Jarrett, instructed by the Director of State Proceedings for the Defendant

JUDICIAL REVIEW — NATURAL JUSTICE — LEGITIMATE EXPECTATION — WHETHER HEARING REQUIRED PRIOR TO INTERDICTION OF PUBLIC OFFICER — WHETHER WITHHOLDING OF HALF OF THE CLAIMANT'S SALARY WHILE CLAIMANT IS ON INTERDICTION CONSTITUTES A WHETHER — PENALTY CLAIM HAS BEEN FILED AGAINST THE APPROPRIATE PARTY AS DEFENDANT — PRESUMPTION OF REGULARITY — BREACH OF CONSTITUTIONAL RIGHTS TO FAIR HEARING AND ENJOYMENT OF PROPERTY — ABUSE OF PROCESS.

OPEN COURT

Anderson K., J

BACKGROUND

1 Prior to the hearing of this application for judicial review, leave was duly sought by way of Notice of Application for Court Orders, filed on July 9, 2014, and granted by his Lordship Sykes J. on July 11, 2014. It is worth noting that in addition to granting the claimant leave to apply for judicial review, his Lordship – Sykes J. made an order barring the defendant from proceeding to hear and determine the disciplinary charges preferred against the claimant until this court has heard and determined the issues raised in the claimant's application for judicial review.

2 Prior to hearing and determining the claimant's application, it was incumbent upon this court to address a housekeeping matter. The aforementioned leave to apply for judicial review was granted in respect of claim number 2014 HCV 03277; however, the corresponding Fixed Date Claim Form and Supporting Affidavit, filed on July 24, 2014, were improperly assigned a different claim number — 2014 HCV 03603.

3 To rectify that error, an order was made by this court on February 16, 2015, that the documents filed in respect of claim number 2014 HCV 03603 shall be treated and recorded by the Registrar as if they had been filed in respect of Claim No. 2014 HCV 03277, which is of course, this claim.

SUMMARY OF THE CLAIMANT'S STATEMENT OF CASE

4 On or about June 17, 2008, the claimant was appointed as the Executive Director of the Bureau of Women's Affairs (‘the Bureau’). The Bureau was then under the aegis of the Ministry of Youth, Sports and Culture and is a department of the Government which then was under the portfolio of the Office of the Prime Minister (‘OPM’).

5 Some six (6) years after her appointment, the claimant was called into two (2) meetings with the Permanent Secretary in the OPM, Ms. Onika Miller (‘Ms. Miller’). Both meetings were held on February 10, 2014. The claimant contends that she was only given notice of the first meeting and was informed that the purpose of the said meeting was to discuss an internal audit report which contained the findings of an audit which commenced in May 2013 in respect of the Bureau.

6 In respect of the first meeting, the claimant contended that her requests to be notified of the format of the meeting and to be accompanied by support staff were both denied. After the first meeting concluded, a second meeting was then convened. The claimant has contended that she had no prior notice of the second meeting. The purpose of this second meeting was to address complaints made in respect of the claimant that were submitted to the OPM by members of staff from the Bureau and other external parties.

7 At the conclusion of the second meeting, the Permanent Secretary, Ms. Miller, informed the claimant that she would be interdicted from her duties and to that end, a letter (dated February 7, 2014) was given to the claimant which advised, inter alia, –

‘… pursuant to the powers delegated by the Governor-General acting on the advice of the Public Service Commission (The Delegation of Functions) (Public Service) (Specified Ministries and Departments) Order 2000), I am to inform you that you are being interdicted from duties with effect from 10 ^th February 2014 pending disciplinary proceedings being instituted against you.

In keeping with Regulation 32 of the Public Service Regulation, 1961, you will be interdicted on half salary…’

That letter was signed by the Permanent Secretary, Ms. Miller.

8 The claimant sought leave to apply for judicial review by way of Notice of Application for Court Orders, filed on March 11, 2014. That application was however, subsequently withdrawn on June 26, 2014, as the interdiction (effective as of February 10, 2014) was rescinded by way of letter dated June 24, 2014, signed by the Senior Director of Human Resource Development for the Permanent Secretary. The claimant also received the portion of her salary which was withheld.

9 The claimant subsequently received a second letter also dated June 24, 2014, from the Chief Personnel Officer of the Office of the Services Commission which informed her of the following —

• i. that approval had been given for fifteen (15) charges, which were attached, to be preferred against her under regulation 43 of the Public Service Regulations, 1961 with a view to her dismissal;

• ii. that approval had been given for her interdiction from duty on half salary with effect from June 25, 2014 in accordance with regulation 32 of the Public Service Regulations, 1961, pending the outcome of the disciplinary proceedings;

• iii. that she had fourteen (14) days to send to the Chief Personnel Officer the written grounds on which she would rely to exculpate herself from the charges (‘grounds of exculpation’);

• iv. that should she fail to send the grounds of exculpation, the matter would be pursued by the Public Service Commission (the defendant herein) without any further reference to her;

• v. that she would be furnished with copies of the necessary statements relating to the charges;

• vi. that she should make the necessary arrangements to (a) secure the attendance of any witnesses that she intended to call at the Enquiry; and/or (b) produce the evidence that she intended to rely on at the Enquiry; and

• vii. that she should submit the name and contact information of her representative if she intended to seek permission to be represented at the Enquiry.

10 In response to this second letter which, inter alia, placed the claimant on interdiction, the claimant sought leave to apply for judicial review and upon receiving the requisite leave, she duly filed a Fixed Date Claim Form and Supporting Affidavit on July 24, 2014. That Supporting Affidavit was deponed to by her. The relief sought by the claimant is as follows –

• ‘1. An Order of Certiorari quashing the decision of the defendant to interdict the claimant by way of letter dated June 24, 2014;

• 2. An Order of Certiorari quashing the final audit report on which inter alia the decision to place the claimant on interdiction was taken;

• 3. A Declaration that the decision to place the claimant on interdiction, was done in breach of the [sic] her constitutional rights as a public officer and in breach of the rules of natural justice;

• 4. Further or alternatively to (3) above, a declaration that the decision to interdict the claimant and to withhold half of her salary, was done in breach of her constitutional rights as a public officer and in breach of the rules of natural justice;

• 5. An Order of Prohibition restraining the defendant from considering and determining the charges which have been preferred against the claimant with a view to dismissal;

• 6. Cost of the Application to the Applicant; and

• 7. Any other remedy that this Honourable Court deems just.’

11 The grounds upon which the claimant is seeking the relief (supra) may be summarised as follows –

• i. The claimant was not given an opportunity to be heard/ given a fair hearing prior to being placed on interdiction and this was in breach of the claimant's constitutional rights and the rules of natural justice;

• ii. The claimant had a legitimate expectation that she would be given a fair hearing prior to being placed on interdiction;

• iii. The charges which have been preferred against the claimant neither warrant her being placed on interdiction, nor dismissal;

• iv. The interdiction is oppressive and an abuse of process;

• v. The defendant failed to allow the claimant the opportunity to show why her salary should not have been reduced by half, nor did the defendant provide reasons for the reduction; and

• vi. The internal audit report which gave rise to the institution of disciplinary proceedings was unfair, unbalanced and biased as it did not take into account the comments of the Bureau's senior management.

No Opportunity to be Heard

12 The claimant in her Affidavit filed on July 24, 2014 in support of the Fixed Date Claim Form, has asserted that the first time that she was placed on interdiction (by Ms. Miller), it was based on facts and circumstances which cannot be justified and if she had been afforded a proper hearing, perhaps she would not have been placed on interdiction. The claimant stated that the very same circumstances have arisen again, save that she has been placed on interdiction by the defendant (the Public Service Commission) rather than, by the Permanent Secretary.

13 The claimant has contended that the second interdiction (by the defendant) is in breach of her constitutional rights as a public officer and her common law rights as a citizen by not affording her a hearing; and also a breach of natural justice as the interdiction interferes with her property (namely her salary, entitlement to salary and perquisites of office). She further contended that save for the letters dated June 24, 2014 (mentioned in paragraphs [8] and [9] herein), she was given no notification, nor any opportunity to be heard before the second interdiction was put in effect. It must be recalled though, for the...