Robinson (Lackston) v Daisy Coke and Others

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: FORTE, P , SMITH, J.A; , K. HARRISON J.A : , FORTE, P.
• Judgment Date: 08 November 2006
• Neutral Citation: JM 2006 CA 53
• Judgment citation (vLex): [2006] 11 JJC 0804
• Date: 08 November 2006

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE K. HARRISON, J.A

BETWEEN

LACKSTON ROBINSON

APPELLANT

AND

DAISY COKE

1 ^ST RESPONDENT

AND

MICHAEL FENNELL

2 ^ND RESPONDENT

AND

EDWIN JONES

3 ^RD RESPONDENT

AND

PAULINE FINDLAY

4 ^TH RESPONDENT

AND

GEORGE PHILLIP (Members of the Public Service Commission)

5 ^TH RESPONDENT

AND

THE ATTORNEY GENERAL

6 ^TH RESPONDENT

R.N.A Henriques Q.C and Ransford Braham instructed by Livingston Alexander and Levy for Appellant.

Dennis Morrison Q.C, Mrs. Nicole Foster Pusey and Miss Katherine Denbow instructed by the Director of State Proceedings for Respondents.

EMPLOYMENT LAW - Legal Officers - Powers of

EMPLOYMENT LAW - Public Officers - Powers of

FORTE, P

1 I have had the opportunity of reading in draft the judgment of Smith, J.A. and agree with his decision and the reasons therefor. However, for emphasis I re-iterate one aspect.

2 At the time when the appellant was appointed to act as Deputy Solicitor General, there was no clear vacancy, and consequently because of his seniority the provisions of section 18(2) would give him some claim to be appointed to act in the post. The position of Deputy Solicitor General became vacant thereafter when Mr. Patrick Robinson proceeded on pre-retirement leave. Consequently, any appointment to act in the post became one which was "prelude" to the filling of the substantive post. The provisions of section 18(1) then became applicable bringing into consideration the matters set out in section 17. Section 17(3) sets out inter alia, the following which are to be taken into account in recommending an officer to act in such circumstance:

• (a) his general fitness

• (b) the position of his name on the list, and

• (c) any specific recommendation of the Permanent Secretary or Head of Department for filling the particular post.

3 The Solicitor General as head of the department would be required to make his recommendation in regard to the appointment of the appropriate officer.

4 When the post became vacant, different considerations became relevant, as to the officer to be appointed to act in the vacant post. In particular, seniority was not the only criteria to be used, but was only one of the considerations. In those circumstances, particularly having regard to the fact that the Solicitor General was relatively new to the post, it was fair and reasonable for him to be given the opportunity to see how another officer would perform in the post before making hi,,,,s recommendation. There was no decision that ultimately the appellant would not be appointed to the post.

5 In my view, given those factors there could be no valid complaint that the Commission and/or the Solicitor General acted in breach of the provisions of the regulations.

SMITH, J.A;

6 This appeal concerns the question of the power of the Solicitor General to recommend the reversion of the appellant and the appointment of a junior person to act in his place. The apThe Norman Manley Law School in 1988. He was appointed to act as Crown Counsel in the Attorney General's Department. In 1990 he was confirmed in that post.

7 In 1991 he was appointed to act as Assistant Attorney General. In 1993 his appointment to the substantive post was approved by the Public Services Commission on the recommendation of the Solicitor General.

8 In February, 1999, on the recommendation of the Solicitor General the Public Services Commission approved his appointment as Divisional Director.

9 In November, 2000, the Solicitor General recommended his appointment to act as Deputy Solicitor General vice Mr. Patrick Robinson and in place of Mr. Lennox Campbell, Q.C. who was appointed to act as a Puisne Judge. Mr. Patrick Robinson, who was seconded to the United Nations International Criminal Tribunal, retired from the Public Service in November 2002. Mr. Lennox Campbell was confirmed as a Pusine Judge in August 2001. Accordingly, the post became vacant.

10 The late Dr. Kenneth Rattray Q.C. demitted the office of Solicitor General in December, 2000 and Mr. Michael Hylton, Q.C. was appointed to that office in January, 2001.

11 According to the appellant sometime in October, 2001 the SolicitorGeneral informed him that he intended to recommend that Mr. Hugh Salmon act as Deputy Solicitor General for a period of six months after which he would decide who should be appointed Deputy Solicitor General. Mr. Salmon had joined the Department in March, 1997. The appellant expressed his disagreement with the Solicitor General's proposal. On the 19 ^th October 2001, the Solicitor General addressed the following memorandum to the appellant:

"Further to our recent discussions, I confirm that I propose, to implement the following with effect from December 1, 2001:

• (a) I am recommending to the Public Service Commission that Mr. Salmon act as Deputy Solicitor General for a period of six (6) months. He will continue to do the Commercial and other legal work which he is now doing, and will also be responsible for the Deputy Solicitor General's administrative functions indicated on our organizational chart.

• (b) Mr. Robinson will continue to do Litigation work, and will assume responsibility as Director of the General Legal Advice Division.

• (c) You can decide whether any other adjustments (e.g. in relation to rooms) will be necessary to effect the above."

12 The Solicitor General also sent the appellant a memo captioned, "Your Status and Performance as Deputy Solicitor General (Acting.)" I will return to this memo. On the same day the Solicitor General wrote to the Chief Personnel Officer in the Office of the Services Commission in the following terms:

"As you know, Mr. Lackston Robinson has been acting as Deputy Solicitor General, vice Mr. Patrick Robinson who is on pre-retirement leave.

It would be appropriate, in my view, that other persons be allowed an opportunity to act in that capacity before a decision is made as to who should be recommended in due course for appointment.

I therefore recommend that with effect from December 1, 2001, and for a period of six (6) months. Mr. Hugh Salmon act as Deputy Solicitor General. Mr. Lackston Robinson would therefore revert on December 1 to his substantive post as Senior Assistant Attorney General."

13 Approval was given for Mr. Salmon to act in place of Mr. Lackston Robinson, the appellant. On the 9 ^th April, 2002, the appellant filed an Originating Summons for the determination of the following questions (as amended):

• " 1. Whether or not the Solicitor General has power to rotate officers in the Attorney General's Department be they senior or junior to perform the functions of a higher office before making a recommendation to the Chief Personnel Officer under Section 18(2)(b) of the Public Service Regulations 1962.

• 2. The hierarchy of offices in the Attorney General's Department being the Attorney General, the Solicitor General and two Deputy Solicitors General one of which will become vacant whether or not it is the duty of the Solicitor General to recommend the most senior officer in the department to the rank of Deputy Solicitor General pursuant to the Regulations aforesaid.

• 3. Whether it is lawful for the Chief Personnel Officer to ignore the provisions of the Constitution and the Public Service Regulations 1961 where there is a clear vacancy in a post by appointing a person junior in rank to the Plaintiff without first making a determination as to whether the Plaintiff who at the material time was duly appointed to act in the said post, is suitable to be appointed to the post aforesaid.

• 4. Whether it is lawful for the Chief Personnel Officer to remove the Plaintiff from his post of Acting Deputy Solicitor General where a clear vacancy exists in relation to the said post for reasons other than those related to performance or conduct; in that

  • (i) there was no assessment of the Plaintiff's performance in the post as required by the Public Service Regulations 1961; and

  • (ii) the purported assessment was not disclosed to the plaintiff in order that he may have the opportunity to respond thereto, and consequently was deprived of being heard concerning same in breach of the rules of natural justice.

• 5. Whether the action of the Public Service Commission in reverting the Plaintiff to his substantive post with the consequential reduction in salary and other benefits amount to deprivation of property without lawful authority within the meaning of Section 18 of the Constitution.

• 6. Whether it is lawful for the Chief Personnel Officer to revert the Plaintiff to his substantive post on grounds other than those prescribed in the Public Service Regulations 1961.

• 7. The Plaintiff, having acted in the post for several months and there being a clear vacancy and having regard to the Public Service Regulations and established practice, had a legitimate expectation of being confirmed in the post, have the actions of the Chief Personnel Officer deprived the Plaintiff of the legitimate expectation of being confirmed."

14 The Originating Summons was dismissed by Harris J with costs to the respondents. This is an appeal against the decision of Harris J.

15 The Issues

16 Some fourteen (14) grounds of appeal were filed on behalf of the appellant. It is common ground that these grounds raised four (4) issues:

• "(1) Whether or not the system of rotation which the Solicitor General was implementing is permissible under the Public Service Regulations 1961, in particular section 18(2).

• (2) Whether or not the Chief Personnel Officer could on the fact of this matter make the decision to revert the appellant without his having the opportunity of being heard in particular by reliance on the memo which...