Sheldon Roberts v The Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Pettigrew-Collins, J |
| Judgment Date | 27 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU2021CV03253 |
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[2023] JMSC Civ. 122
CLAIM NO. SU2021CV03253
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Whether claim is an abuse of process — Constitutional law — Section 16(2) of the Constitution — Right to Due Process — Public Service Regulations — Jamaica Library Board Administrative Rules Governing Disciplinary Procedure Affecting Permanent Officers and Employees — Withholding of salary on interdiction — Stay of Disciplinary Proceedings — Remedy for breach of constitutional rights.
Miss Kareem Reid instructed by Janet A. Patmore for the Claimant
Miss Karessiann Gray instructed by the Director of State Proceedings for the Defendants
The claimant, Mr. Sheldon Roberts, is a librarian employed by the Government of Jamaica at the St. Elizabeth Parish Library. He is currently on interdiction and has been since July 2016, because disciplinary action was taken against him on account of allegations of irregularities in his handling of public funds. Portions of his salary and emoluments are being withheld each month. A disciplinary hearing was convened, but after years have passed, the claimant has not been advised of the outcome of the hearing. He caused an Amended Fixed Date Claim Form to be filed on October 25, 2021, against the defendants, in which he sought various orders.
In the Amended Fixed Date Claim Form, the claimant claims the following:
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(a) A declaration that his constitutional right to a fair hearing within a reasonable time before an independent and impartial authority in respect of disciplinary charges against him has been and is being breached.
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(b) A declaration that his right to a fair hearing within a reasonable time by an independent and impartial authority in relation to a decision to reduce his salary whilst on interdiction has been and is being breached.
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(c) An order that so much of his salary and benefits as have been withheld between 2016 and the date of the Court's decision be paid to him forthwith with interest thereon at such rate as to the Court seems just.
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(d) A declaration that he was wrongfully subjected to a disciplinary hearing prior to a ruling by the Director of Public Prosecutions.
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(e) Damages for breach of his constitutional right to a fair hearing within a reasonable time by an independent and impartial authority.
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(f) That he be reinstated.
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(g) That the disciplinary proceedings against him be stayed and no further disciplinary proceedings taken against him in respect of the allegations in those proceedings.
The court will seek to resolve this claim by addressing each declaration sought in the claimant's Amended Fixed Date Claim Form. But firstly, the court must consider whether the claim or any aspect of it is an abuse of process. In addressing the question whether the disciplinary proceedings should be stayed and there be no further disciplinary proceedings against the claimant in respect of the allegations, the court will also address whether the claimant's employment is governed by the Public Service Regulations or the Jamaica Library Board Administrative Rules Governing Disciplinary Procedure Affecting Permanent Officers and Employees, (Library Rules). Brief consideration will be given to whether the members of the committee of enquiry and the Attorney General are proper parties to the claim.
The affidavit of Mr Roberts, sworn to on October 9, 2021, was filed in support of the Amended Fixed Date Claim Form. He stated that he has been permanently employed by the Government of Jamaica at the Jamaica Library Service, an agency of the Ministry of Education, and has been a Public Officer pursuant to the Civil Service Establishment Act and orders made thereunder.
The claimant said that he was initially employed as a reference librarian stationed at the Manchester Parish Library and was promoted to rural development librarian in 2007 and has occupied that post since 2007 but was placed on interdiction since July 2016. He said that all his appraisals since his appointment and up to the time of his interdiction have been favourable.
He said that on July 20, 2016, he was notified of his interdiction from his duties with effect from July 22, 2016 on three-fourths of his salary based on allegations that he had violated standard procedures governing the collection of public funds, and that he has remained on interdiction continuously since then.
He also said that although he is an approved travelling officer with a car, he has not been receiving the full allowance of upkeep for his motor car. Neither has he been paid duty allowance since he was put on interdiction. He also averred that on April 28, 2017, he was advised by the Director General of the Jamaica Library Service that the proportion of his salary that would be withheld would be increased from one quarter to one half.
It was the claimant's affidavit evidence that he was advised by the Director General via letter dated February 2, 2017 of the completion of investigations into the suspected irregularities and the disciplinary charges against him were set out. It was the claimant's affidavit evidence that he was informed by the Ministry of Education Youth and Information via letter dated February 22, 2017 that the dates scheduled for his disciplinary hearing by a Committee of Enquiry were the 27 th and 28 th of March 2017. The letter was accompanied by a copy of the formal charges laid against him.
It was the claimant's affidavit evidence that he attended at the hearing and was represented by his then attorney-at-law, Mr Debayo A. Adedipe, and that the Committee of Enquiry established to try him consisted of three persons: Mr. Hugh Salmon (Chairman), Ms. Eileen Biambi and Reverend Franklyn Jackson. He said Mr. Adedipe submitted to the panel that the hearing should not proceed because no ruling had yet been made by the Director of Public Prosecutions, pursuant to the provisions of the Public Service Regulations.
The hearing commenced on 27 th April 2017 and continued 28 th April and 1 st May 2017. The claimant said that Mr. Adedipe addressed the Committee on the evidence on the 1 st of May 2017 and the panel reserved its decision. The Committee promised that it would hand down its decisions within two (2) weeks. It was the claimant's evidence that the panel has not delivered a decision up to the date he swore to his affidavit.
The claimant said that he made several enquiries of the Ministry of Education through Mr. Adedipe, to ascertain when the promised decision would be delivered but there was no response initially. Then, by letter dated 1 st September 2017, the Ministry of Education Youth and Information advised that it had been directed by the Ministry of Finance to write to the Director of Public Prosecutions to seek its guidance and had done so.
He stated that he was not advised of the panel's failure to deliver a decision in obedience to a directive from the Ministry of Finance that it awaits guidance/a ruling from the Director of Public Prosecutions, nor were his views sought by the Committee of Enquiry before it decided not to deliver a decision. The claimant said he has been denied a fair hearing by an impartial and independent tribunal to the extent that the panel clearly acted on the direction of the Ministry of Finance.
He stated further that the advice of the Director of Public Prosecutions regarding whether criminal proceedings could be initiated against him was not sought before a recommendation or decision was made that disciplinary proceedings should be instituted. He contends that the disciplinary proceedings against him are in breach of the Public Services Regulations.
The claimant also contends that the delay in making a decision after the hearing violates his constitutional right to have a fair hearing within a reasonable time. He claims that his salary was unconstitutionally reduced since he was entitled to a hearing before any decision was taken to withhold any part of the salary. Mr. Roberts said that having regard to the decision in Faith Webster v Public Service Commission [2017] JMSC Civ 69, (hereinafter referred to as Faith Webster) repeated requests were made on his behalf, by his then attorney-at-law, that he be paid the portion of his salary that was wrongfully withheld, but the Ministry of Education/Jamaica Library Service has failed and refused to so.
A third affidavit was filed by Mr. Roberts on February 28, 2022, in response to the defendant's affidavit filed November 26, 2021. Mr. Roberts stated in that affidavit that he has been continuously living at the address given in his affidavit since July 3, 2011, and that this address is the matrimonial home occupied by himself, his wife and young son. He said he has not removed from this address since being placed on interdiction. He said it is also not true that he cannot be found as he has attended at the Black River Parish Library every month since August 2018 to have his transport allowance claim form certified by the Parish Librarian, Mrs. Louise Foster, and to collect his electricity bill which is still sent to him at the Black River Library. He exhibited a copy of his electricity bills postmarked July 8, 2019, and March 12, 2021, which he said he personally collected at the Black River Library. He also said that all correspondence about extensions of his interdiction up to April 2017 were delivered to him personally at his home address, by staff members at...
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