Gregory Archer v The Ministry of National Security
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 01 December 2020 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2018/PUB/jrv/00716 |
| Date | 01 December 2020 |
IN THE SUPREME COURT
PUBLIC LAW DIVISION
The Hon. Madam Justice G. Diane Stewart
2018/PUB/jrv/00716
(The Bahamas Department of Corrections)
Ms. Tanya Wright for the Applicant
Mr. Kenny Thompson for Respondents
Public Law — Judicial Review — Alternative Remedy — General Orders Justiciable — Whether the application should be considered based on principles of Employment Law — Public Services Commission Regulations — Public Services Act — Grounds for Judicial Review — Irrationality — Illegality — Wednesbury Unreaonableness — Procedural Unfairness/Bias
The Applicant, Mr. Gregory Archer (the “Applicant”) sought and was granted leave to apply for Judicial Review on 25 th October, 2018.
On 25 th January, 2019, the Applicant filed his Originating Notice of Motion seeking a review of The Bahamas Department of Correctional Services' (“BDOCS”) decision made on 15 th January, 2018 ( the “Decision”) not to recommend the Applicant for a promotion to the next level of Principal Corrections Officer. The Applicant claimed that he was overlooked based on the erroneous information that the Applicant lacked the requisite academic qualifications. As a result, the Applicant sought the following Orders:
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2.1 A Declaration that the BDOCS' decision not to recommend the Applicant for promotion to the next level of Principal Corrections Officer, due to lack of academic qualifications was irrational and unfair.
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2.2 An Order that the decision of BDOCS' not to recommend the Applicant for promotion to the next level of Principal Corrections Officer due to lack of academic qualifications be quashed.
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2.3 An Order mandating the promotion of the Applicant to the position of Principal Corrections Officer.
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2.4 Pecuniary and Non-Pecuniary Damages flowing from the unlawful decision.
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2.5 An Order that the Respondent do pay the costs of and incidental to this application to be taxed unless otherwise agreed.
The grounds relied on by the Applicant were:-
(the “JR Application”)
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3.1 Irrationality having regard to the admission by the Respondent on 28 th December 2016 by letter of even date from Dawn E. Culmer on behalf of the Permanent Secretary for the Ministry of National Security, that the Applicant had in fact met the minimum academic requirement for the post of Principal Corrections Officer but merely lacked the minimum Five (5) year experience up to the 2014 promotion exercise having served only Three (3) years as Corrections Sargent since his promotion in 2011.
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3.2 Unfairness having regard to the fact that since 2014, the Respondent's decision not be recommended the Applicant for promotion to the next level of Principal Corrections Officer due to lack of academic qualifications was predicated on One (1) of the Two (2) requirements for promotion to the post of Principal Corrections Officer.
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3.3 Breach of natural justice in that:
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3.3.1 It failed to take material facts and evidence that the Applicant had in fact met the requirement for the promotion based on the academic requirements for an officer serving Five (5) years in his previous post into account.
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3.3.2 it took distorted or irrelevant facts into consideration by applying the post requirements for an officer possessing a minimum of seven years as opposed to Five years;
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3.3.3 It failed to reasonably apply the facts to its decision.
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On day two of the hearing of the JR Application, Counsel for the Respondents (“Mr. Thompson”) made an application “in limine” for an Order that the JR Application be struck out for non-compliance with Order 53 rule 2 (5) of the Rules of the Supreme Court for not filing the application within the time limited by the rules. The Court ruled that the non-compliance was an irregularity and did not nullify the proceedings and dismissed the Respondents application to strike out the JR Application.
The Applicant relied on the following documents:
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5.1 Affidavit of Gregory Archer filed 21 st June 2018; (1st Archer Affidavit)
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5.2 Witness Statement of Vanrea Lindsay Armaly filed 23 rd January, 2019;
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5.3 Witness Statement of Scott Macfarlin Williams filed 23 rd January, 2019; and
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5.4 Supplemental Affidavit of Gregory Archer filed 25 th January, 2019. (“the 2nd Archer Affidavit”)
By Affidavit filed 21 st June 2018, the Applicant swore that he was employed with BDOCs for over twenty eight years and that he was currently a Corrections Sergeant and had held that position since 1 st August, 2013. He said that he had never been the subject of any investigation or charge and that his Annual Performance Appraisals were above average for over twelve years. In July 2016 in a previous promotion exercise, he had also advised that he would not be promoted to the post of Principal Corrections Officer, the decision being set out in a letter dated 26 th December, 2016 from Ms. Culmer on behalf of the Permanent Secretary of the Ministry of National Security.
By that letter, he was informed that he could not be considered for a promotion to the post of Principal Corrections Officer because he had only met the minimum academic requirement of having five BJC subjects and did not meet the requirements of seven years relevant experience; the requirements for the post were either two BGCSE/GCE subjects and five years' experience or five BJC subjects and seven years' experience. The Applicant had one Pitman Certificate and 10 BJCs but not the seven years' experience.
The Applicant attested that by Circular No. 44, circulated on or around 18 th October, 2016, the Ministry of Public Service informed all permanent secretaries, head of departments and human resources officers that for the Bahamas Government's purposes the academic qualifications for appointment/reclassification were revised. Instead of five BJC's or equivalent passes, one BGCSE/GCE of grade C or above would be accepted. The applicant attested that by virtue of this, he not only met but exceeded the requirement of two BGCSE/GCE subjects of grade C or above and further one Pitman/RSA/City and Guilds Level I had the same value as one BJC and one Pitman/RSA/City and Guilds Level II or above had the same value as one BGCSE/GCE. (“Circular No. 44”).
He further stated that by Circular No. 29, dated 5 th October, 2017, Miss Elise Delancy, the Permanent Secretary for the Ministry of Public Services informed all permanent secretaries, heads of departments and human resources officers with responsibility for human resource matters that for the Bahamas Government's purposes one BGCSE of grade C or above or equivalent (Pitman/RSA/City and Guide Level II or GCE ‘O’ Level) including English would be accepted at the same monetary value as five BJC's or equivalent passes including English Language for appointment/reciassification.
The circular advised that one Pitman/RSA/City and Guilds Level I had the same value as one BJC and that one Pitman/RSA/City and Guilds Level II had the same value as one BGCSE. It was also stated that this Circular superseded Circular No. 44 (“Circular No. 29”). The Applicant stated that he was advised by his Attorney that the revision had no effect on the acceptance of five BJC's or equivalent passes as one BGCSE and he therefore not only met but exceeded the requirement of two BGCSE subjects at the time of the 2017 promotion exercise as he had 10 BJC's.
In 2017, BDOCs conducted another promotion exercise however, on 15 th January, 2018, he received a supersession letter signed by Mr. Patrick P. Wright, the then Commissioner of Corrections (“Commissioner Wright”) informing him that he would again not be recommended for a promotion. At the time, he had served over five years in his post as Corrections Sergeant and possessed the minimum academic qualifications.
The Applicant believing that the decision was irrational, unfair and a breach of the rules of natural justice, wrote to Commissioner Wright on 5 th February, 2018, the Attorney General on 6 th February, 2018 and the Chairman of the Public Service Commission on 17 th April, 2018 and through his Attorney on the 28 th May 2018 informing them that he had been overlooked for the promotion despite the fact that he met the requirements for the promotion.
By letter dated 11 th June, 2018, Ms. Karen Turner, Secretary of the Public Service Commission informed him that their records indicated that he was the holder of ten BJC subject passes including English and also the holder of a Pitman Certificate in English which qualified him to be previously promoted to Prison Sergeant in 2011 however, he did not meet the requirements for the promotion to Principal Corrections Officer as he lacked the seven years' experience.
The Applicant maintained that he had been unfairly targeted and that the decision not to promote him was based on the Respondents' bias towards him because he was the past President of the BDOCS' Association from 2009 to 2014. While President he publicly challenged the policies of successive governments with respect to the operation and management of BDOCS. He also represented individual officers in hearings for their personal grievances or charges against them.
By his supplemental affidavit filed 25 th January, 2019 the Applicant swore that during the 2017 promotion exercise, many correctional officers were promoted without the purported educational qualifications and that they had only enrolled with the Ministry of Education's Testing and Evaluation Section to sit the examinations and obtain the qualifications after the promotion. The Applicant exhibited excerpts from the Department of Correction's Education Criteria Roll and identified prison officers who held certain positions at BDOCS even though they did not meet the required academic qualifications.
Vanrea...
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