Jacqueline Mendez v Deborah Patrick-Gardner
| Jurisdiction | Jamaica |
| Judge | P Williams JA,D Fraser JA,Simmons JA |
| Judgment Date | 21 January 2022 |
| Neutral Citation | JM 2022 CA 7 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 55/2018 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Civ 3
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Mr Justice D Fraser JA
THE HON Miss Justice Simmons JA
SUPREME COURT CIVIL APPEAL NO 55/2018
and
Ms Althea Jarrett and Ms Carla Thomas instructed by the Director of State Proceedings for the appellants
Hugh Wildman and Ms Faith Gordon instructed by Hugh Wildman and Co for the respondent
I have read in draft the judgment of Simmons JA. I agree with her reasoning and conclusion and have nothing to add.
I too have read the draft judgment of Simmons JA and agree with her reasoning and conclusion. There is nothing that I wish to add.
The delay in the delivery of this judgment is sincerely regretted, and the court apologizes for it.
This is an appeal from a decision of the Full Court made on 19 April 2018, granting an order of certiorari quashing the decision of the 2 nd appellant, the Public Service Commission (‘the Commission’), to retire the respondent, Mrs Deborah Patrick-Gardner (‘Mrs Gardner’), from the public service (see Deborah Patrick-Gardner v Jacqueline Mendez and the Public Service Commission [2018] JMFC Full 2).
The appellants filed 11 grounds of appeal. However, at the commencement of the hearing on 15 December 2020, Ms Althea Jarrett, on behalf of the appellants, indicated that they would only be pursuing grounds (a), (b) and (j), thus effectively abandoning the remaining grounds (c) – (i). After hearing the submissions from both counsel on the three grounds being pursued, we invited Ms Jarrett to indicate in writing the orders that were now being sought. We reserved our decision and promised to deliver the court's reasons in writing at a later date.
By way of letter dated 18 December 2020, Ms Carla Thomas, on behalf of the appellants, indicated that the appellants were seeking orders in the following terms:
“1. The appeal is allowed in part.
2. It is hereby ordered that:
(i) The manner in which the [respondent] was purportedly retired was not contrary to regulation 26 of the Public Service Regulations. Regulation 26 is to be interpreted as applying to the retirement of a public officer in circumstances where there is dissatisfaction with a public officer or where the public officer is unsuitable to remain in the public service.
(ii) Section 15A(1) of the Judicature (Supreme Court) Amendment Act is in contravention of section 125 of the Constitution. Accordingly, that section is to be amended to remove the words ‘after consultation with the Chief Justice’ and ‘subject to the approval of the Chief Justice’.
(iii) No order as to costs.”
The respondent, on her own behalf, by letter dated 8 January 2021, sought to address the above by way of submissions in respect of grounds (a), (b) and (j). She filed authorities in support of those submissions. This was followed by the “Further Submissions of the Respondent”, filed on 22 January 2021, in the same terms as the letter of 8 January 2021. The appellants responded to those submissions on 11 February 2021 and this was followed by the “Respondent's Submissions in Reply” filed on 1 March 2021.
These further submissions deal with the issue of whether, in light of the concessions made by counsel for the appellants, the remaining grounds of appeal are solely of academic interest. Having received the above submissions, this court is now in a position to deliver its judgment.
On 1 October 2011, Mrs Gardner was appointed in the public service as the Principal Executive Officer of the Court Management Services. About two years into her tenure, she applied for and obtained study leave for three years to pursue a Bachelor of Laws Degree, with the stipulation that she would receive: (i) two years paid study leave and (ii) one-year unpaid study leave. Mrs Gardner completed her course of study in two years (in about September 2015) and subsequently sought additional leave to pursue the Certificate of Legal Education at the Norman Manley Law School. By way of letter dated 24 September 2015, Mrs Gardner was informed that she had been granted study leave for 24 months without pay.
On 25 September 2015, she indicated by letter addressed to the Commission that she had resumed duties as the Principal Executive Officer. She also indicated that she had been unable to gain access to the office of the Principal Executive Officer as it was still occupied by Mrs Carol Hughes, who had been acting in that position.
By letter dated 28 September 2015, addressed to the Commission, Mrs Gardner declined the offer of unpaid study leave. She again indicated that she had been unable to access her assigned office and also only one-third of her salary for the month of September had been lodged to her bank account.
By letter dated 28 September 2015, Mrs Gardner was advised by Dr Lois Parkes, the Chief Personnel Officer at the time, that since she had been granted study leave for three years, her resumption was not anticipated until September 2016. As such, no arrangements were made for her return on 25 September 2015. Dr Parkes also indicated that the justice reform programme was at a critical stage, and “in the interest of the continued smooth operations of the Court Management Services, a change of leadership at [that] juncture would be unsettling”.
In another letter dated 28 September 2015, Dr Parkes informed Mrs Gardner that upon the recommendation of the Chief Justice, approval had been given for her to be redeployed to the Ministry of Justice (‘the Ministry’) with effect from 29 September 2015 until further orders. She was also informed that she was expected to carry out duties in relation to the coordination of the justice reform programme as well as any other duties assigned to her by the Permanent Secretary.
Mrs Gardner reported to the Ministry on 29 September 2015 and was advised that she was to report to Mrs Donna Parchment Brown, the Director of the Justice Reform Implementation Unit.
On 1 October 2015, Mrs Gardner, who had concerns regarding her deployment to the Ministry, met with Dr Parkes to discuss those concerns. By letter dated 16 October 2015, which was addressed to Dr Parkes, Mrs Gardner noted that in their meeting, Dr Parkes had given an undertaking to raise her concerns with the Commission at its meeting scheduled to be held on 21 October 2015. Specifically, Mrs Gardner was concerned with what she described as “inconsistencies observed in [her] actual deployment and the provisions in the Public Service Regulations (the Regulations) as well as Staff Orders 1.9.3 [of the Staff Orders for the Public Service (‘the Staff Orders’)]”.
Mrs Gardner requested that, in light of the decision to deploy her to the Ministry, she be assigned to an equivalent position in accordance with the Regulations and the Staff Orders.
Having received no response to her letter dated 16 October 2015, Mrs Gardner wrote to Dr Parkes on 8 January 2016, reminding her of the concerns raised in that letter and her undertaking to raise them with the Commission.
On 18 January 2016, Mrs Gardner met with the 1 st appellant, Mrs Jacqueline Mendez (‘Mrs Mendez’), who was by then the Chief Personnel Officer and expressed her concerns.
On 25 January 2016, Mrs Gardner wrote to Mrs Mendez outlining the history of the matter and reminded her that she had indicated that it would be placed before the Commission at its meeting that month. By way of letter dated 15 February 2016, Mrs Mendez advised the respondent that the Commission had been made aware of her concerns and that its decision would be communicated to her in due course.
By letter dated 20 May 2016, to which a memorandum dated 19 May 2016 was attached, Mrs Gardner was informed by Mrs Mendez that consequent on the 2016 amendment to the Judicature (Supreme Court) Act (the Act), approval had been given for her to be retired from the public service effective 1 June 2016, on the ground of reorganization in accordance with section 6(1)(iv) of the Pensions Act.
Mrs Gardner, who was dissatisfied with this state of affairs, sought and obtained leave for judicial review of that decision. On 20 July 2016, a fixed date claim form was filed on her behalf in which 17 declarations and six orders were sought. The declarations were concerned with the legality of the decision to retire Mrs Gardner from the public service, the procedure that was utilized to do so and the constitutionality of section 15A(1) of the Act, which mandated the Commission to consult with the Honourable Chief Justice in respect of the appointment of the Director of Court Administration. Mrs Gardner also sought the following orders:
“18. An Order of certiorari quashing the decision of [Mrs Mendez] as contained in letters dated May 19 and 20, 2016 respectively, purporting to retire the [respondent] from the post of Principal Executive Officer of the Court Management Services;
19. An Order of certiorari quashing the decision of the [appellants] in purporting to re-deploy the [respondent] from the post of Principal Executive Officer of the Court Management Services to the Ministry of Justice on the recommendation of the Chief Justice;
20. An order of Prohibition prohibiting the [appellants] by themselves or servants or agents from taking any steps to prevent the [respondent] from performing her functions as the duly appointed Principal Executive Officer of the Court Management Services;
21. An Injunction restraining the [appellants] by themselves, their servants or agents, from taking any steps to prevent the [respondent] from performing her functions as the duly appointed Principal Executive Officer of the Court Management Services;
22. Damages to the [respondent] to...
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