Legal Officers Staff Association and Others v Attorney General of Jamaica and Minister of Finance and Public Service

• Jurisdiction: Jamaica
• Judge: KING, J.
• Judgment Date: 03 March 2011
• Judgment citation (vLex): [2011] 3 JJC 0301
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2009/HCV 00660
• Date: 03 March 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2009/HCV 00660

BETWEEN

LEGAL OFFICERS STAFF ASSOCIATION

1 ^ST APPLICANT

AND

TASHA MANLEY

2 ^ND APPLICANT

AND

MELISSA SIMMS

3 ^RD APPLICANT

AND

THALIA FRANCIS

4 ^TH APPLICANT

AND

MAURICE BAILEY

5 ^TH APPLICANT

AND

KHADREA FOLKES

6 ^TH APPLICANT

AND

TRUDY-ANN DIXON-FRITH

7 ^TH APPLICANT

AND

SUSAN WATSON-BONNER

8 ^TH APPLICANT

AND

THE ATTORNEY GENERAL OF JAMAICA

1 ^ST RESPONDENT

AND

THE MINISTER OF FINANCE AND PUBLIC SERVICE

2 ^ND RESPONDENT

Contested Application for Leave to Apply for Judicial Review - whether Governments right to change its policy can be fettered by Legitimate Expectation arising from its previous promise or conduct - Right to be heard

KING, J

1 In this contested application:

2 1. The Applicants seek leave to apply for Judicial Review of:-

• ‘(a) the decision of the Minister of Finance and the Public Service/Cabinet of Jamaica/Government of Jamaica “to de-link” the calculation of the basic salaries of Legal Officers from that of members of the Judiciary;

• (b) the decision of the Minister of Finance and the Public Service/Cabinet of Jamaica/Government of Jamaica to calculate and pay to the Legal Officers salaries not calculated in accordance with the Cabinet Decision of 1993 which decision linked the calculation of the basic salaries of the Legal Officers with that of the members of the Judiciary.’

3 2. The Applicants indicate the relief which would be sought on Judicial Review as being Prerogative Orders of Certiorari, Mandamus and Prohibition to rectify what the Applicants perceive to be an injustice being suffered by them as a result of the decision which they seek to challenge.

4 3. In addition, the Applicants seek an order directing the Respondents to indicate the date on which the ‘alleged’ decision was made and to provide a coy of it or extract from thereof to the Court and to the Appellants.

5 4. An extension of time, if necessary, for the making of this application for leave to apply for Judicial Review.

6 BACKGROUND

7 Sometime in or before 1992 the Heads of Departments (Solicitor General, Chief Parliamentary Counsel, Director of Public Prosecutions, and Director of Legal Reform) arrived at an understanding with the Ministry of Finance and Public Service regarding parity of their salaries with those of the Judges of the Court of Appeal.

8 On the 24 ^th December 1992 the first Applicant which represents the interests of Legal Officers, Clerks of Court and Deputy Clerks of Court in the Public Service of Jamaica (hereafter called LOSA) entered into a Heads of Agreement with the Government of Jamaica governing salaries and allowances for legal officers for the period 1 ^st April 1991 to 31 ^st March 1993. Clause 2F of that Heads of Agreement states, ‘In the event any upward adjustment is made to the basic salary and allowances of Legal Officers at Level VII in keeping with the understanding between the Heads of Departments and the Ministry of Public Service regarding parity with Judges of the Court of Appeal adjustments will be made as appropriate to the basic salary and allowances of other level of the group.’

9 On the 14 ^th March 1994 Cabinet gave approval for a clearly defined pay policy to determine the salaries of Legal Officers whereby the increases in salaries of Legal Officers was linked to increases in salaries of the higher judiciary, i.e. judges of the Supreme Court and Court of Appeal.

10 This situation continued until September of 2008 when the Cabinet, acting on a recommendation contained in the report of the 6 ^th Independent Commission appointed by the Minister under Section 4(2) of the Judiciary Act to inquire into the adequacy of the salaries, benefits, and condition of service of Judges, took the decision to de-link the salary increases granted to judges from those of the Legal Officers.

11 This decision was communicated to LOSA's president Miss Tasha Manley by a letter dated 21 ^st November 2008 from the Financial Secretary, Ministry of Finance. This letter was sent in response to a letter written by Miss Manley of 10 ^th November 2008 to the Minister without Port Folio in the Ministry pointing out that the arrangement in place since 1994 had not been followed in that when the judges received their last increase, the expected corresponding increase had not been received by the Legal Officers. The salary scale applicable to the Legal Officers had been confirmed by Civil Service Order 2008 as amended by the Civil Service Establishment (Amendment) (No. 2) Order 2009.

12 On 19 ^th February, 2009 this application for leave was filed by the Applicants, the application having been subsequently amended on 4 ^th March 2009. Having regard to the fact that the decision to de-link which is the subject of this application was communicated to LOSA on the 21 ^st November 2008, I do not consider that there has been undue delay in the making of this application or the need, therefore, for the order sought at paragraph 6 of the Notice of Application.

13 APPLICANT'S SUBMISSIONS

14 The Applicants contend that:-

15 1. They have met all the procedural requirements for the application as set out in Rule 56.3 or the Civil Procedure Rules 2002.

16 2. They have attained the necessary legal threshold required to receive leave in that in addition to there not having been undue delay in the making of this application, and to the fact that they clearly have sufficient interest in the subject matter of the application, they have an ‘arguable case’ for review.

17 3. The decision to de-link represents a change in Government policy which, admittedly the Government have a right to do. However, where, as in this case, the previous policy was one arrived after negotiations with the Applicants, and that policy having been implemented and followed for a number of years, has given rise to a legitimate expectation on the part of the Applicants that that policy will continue and that any proposed change in the policy will be the subject of prior consultation with the Applicants, to change the...