Between (1) The Royal Cayman Islands Police Association (2) Senior Constable Mark Miller (3) Senior Constable Rodrick Evans Applicants v (1) The Commissioner of the Royal Cayman Islands Police Service (2) The Attorney General of the Cayman Islands Respondents
| Jurisdiction | Cayman Islands |
| Judge | Justice Kirsty-Ann Gunn |
| Judgment Date | 08 December 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G0064/2021 |
Hon. Justice Kirsty-Ann Gunn (Actg)
CAUSE NO. G0064/2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Judicial Review — Uniform Shift Policy — Decision to change the way annual leave is calculated — challenge on the grounds of illegality, irrationality and breach of legitimate expectation — legitimate expectation arising from a regular practice
Mr G. Dilliway-Parry of Priestleys for the Applicants
Mr J. Alcock and Miss M Brandt of the Attorney General's Chambers for the Respondents
The Applicants, being the Royal Cayman Islands Police Association and Senior Constables Miller and Evans (“the Applicants”), challenge the decision of the First Respondent, the Commissioner of the Royal Cayman Islands Police Service (“the Commissioner”), to adopt a policy which the Applicants assert reduced officers' annual leave entitlement from that which they had previously enjoyed. The Attorney-General is joined as the Second Respondent by virtue of section 11(2) of the Crown Proceedings Act (1997 Revision) requiring civil proceedings against the Crown to be instituted against the Attorney-General.
The decision being challenged is contained in a policy document entitled “Royal Cayman Islands Police Service: Uniform Shift Policy” (“the USP”) authorised by the Commissioner and published to all police personnel in December 2020 and which came into effect on 1 January 2021. The USP sets out the adoption of an 8-day, 12-hour shift cycle. Officers working to the USP are required to work 2 day shifts, 2 night shifts followed by four rest days. Paragraph 6.1 of the USP provides that constables shall be entitled to 15 days leave per annum. Prior to the introduction of the USP constables had been receiving 22 days of annual leave. The difference in entitlement arises from the way annual leave was previously calculated and how it is now calculated under the USP.
The Applicants challenge the decision to recalculate annual leave entitlements for constables on the grounds that it is illegal, irrational and in breach of a legitimate expectation and seek the following relief:
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“1. A Declaration that the decision and actions of the First Respondent in implementing the USP Revised Leave Calculation in accordance with the Uniform Shift Policy were/are unlawful;
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2. An order of Mandamus that the First Respondents immediately revoke the Uniform Shift Policy as far as it relates to the USP Revised Leave Calculation;
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3. An Order of Mandamus that the policy in place prior to the implementation of the Uniform Shift Policy remains in place;
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4. Damages sustained due to unlawful implementation of the Uniform Shift Policy
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5. Such further, consequential or other relief that this Honourable Court deems just; and
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6. An order that those costs of and incidental to this application be paid by the First and Second Respondents.”
I have before me a number of affidavits which are uncontentious. Detective Inspector Gordon's affidavits provides the backdrop to these proceedings as well as an outline of the legislative history of annual leave entitlement for RCIPS shift workers. He exhibits the USP. The USP sets out the shift cycle at paragraph 5—
“The work-day authorised by this policy is 7:00 AM to 7:00 PM for the day shift and 7:00 PM to 7:00 AM for the night shift. The work-day includes a total of 12 hours, including a minimum of one hour of unpaid meal break and two 15 minute rest breaks. Under this policy RCIPS shift-based employees are required to work 44 hours over a period of 8 days, which comprises the shift-cycle. The 8-day shift cycle is made up of 2 days and 2 nights on, followed by four days-off (2+2+4). This shift cycle is a total of 2007.5 hours or 182.5 days of work per year, before extracting holidays or annual leave.”
The annual leave entitlements are set out in paragraph 6.1 of the USP —
“Personnel Regulations (2019 Revision), Schedule 1, section 5, subsection lb & lc require that annual leave days for shift based police officers are calculated as:
• Inspectors: 210.0 hours per year = 210.0/11 = 19 days per year
• Sergeants: 187.5 hours per year = 187.5/11 = 17 days per year
• Constables: 165.0 hours per year = 165.0/11 = 15 days per year
Detective Inspector Gordon also exhibited a number of shift rosters for himself as well as Senior Constables Miller and Evans from 2018 to 2021 to illustrate the manner in which leave was calculated in the past.
Senior Constable Miller's evidence is that he has been a Police Constable with the RCIPS for almost 40 years and that up until the introduction of the USP he had always received 22 days leave per annum and that it is his expectation that he will continue to receive leave at that rate.
Senior Constable Evans stated that he has been a Police Constable with the RCIPS for 20 years and that during this period he has always received 22 days annual leave. It is also his expectation that he would continue to receive that level of leave in future.
Commissioner Byrne's first affidavit explains the purpose of the UPS which is to enshrine the 12-hour/8-day shift policy which allows the RCIPS to provide a better service to the community and meet the organisation's overarching goals while at the same time providing officers with a better work-life balance. He outlines the application of the new shift policy. The Commissioner also sets out the results of the USP survey commissioned by his office. Finally, the Commissioner discloses the methodological foundation for calculating annual leave entitlement under the USP —
“The “RCIPS” treats 165 hours/year vacation in the eleven hour a day (shift) system as 15 days (which is calculated by dividing 165 by 11 = 15). This accords with section 5 of the Personnel Regulations (2019 Revision). Section 5(1)(c) specifies hours (not days) for making the calculation. The methodology conforms to the Personnel Regulations (2019 Revision)…
The “USP” interprets the Personnel Regulations as 165 hours of vacation per year for police constables which equates to 15 working days per year. Additionally, for every day of vacation that constables receive while on shift, they also receive a day-off. This means that a constable who takes 15 vacation days per year will be on vacation for 30 days. Tellingly the current eleven hours shift rotation (2x2x4) exceeds the Government minimum standard for annual leave allocation by 19 hours. A shift based officer on a 12 hour shift system in accordance with the “USP” will receive similar time away from work on vacation as an officer on the 7.5 hours workday × 5 days per week and 2 days off rotation. These calculations are operative for all ranks who operate the “USP” (with the exception of Chief Inspectors who do not perform shift work). Police Constables on the “USP” work for 5 months and two weeks each year while those who do not work the “USP” work an additional 82 days each year.”
The Commissioner's supplemental affidavit exhibits literature speaking to the benefits of the 12-hour shift system.
The Applicants have traced the annual leave entitlements back 27 years. The Cayman Islands Government Public Service General Orders as revised on 1 st January 1994 provide that constables are to receive 30 calendar days of leave per annum. The General Orders, which came into force on 10 May 2005, expressed leave entitlement in hours, stipulating constables shall receive 165 hours of annual leave. The General Orders were replaced in 2006 by the Personnel Regulations issued pursuant to the Public Service Management Law. In all versions of the Personnel Regulations up to and including the most recent 2019 revision, they provided that constables shall receive 165 hours of annual leave. Neither the General Orders nor the Personnel Regulations expressly provide for how the allocated hours are to be calculated into days. According to the evidence of Senior Constables Miller and Evans, they have received 22 days annual leave throughout their employment. The Commissioner accepts that under the old regime officers were working 8 hour shifts and annual leave was calculated by a factor of 7.5 hours per day resulting in an annual entitlement of 22 days.
In March 2020, the Commissioner first introduced the 12-hour/8-day shift cycle for his officers to manage the policing requirements during the early stages of the COVID-19 pandemic. Between March 2020 and December 2020, constables were working the new cycle while retaining their entitlement to 22 days annual leave. During September and October of that year the RCIPS conducted a survey of shift officers seeking their views on the benefits and disadvantages of the 12-hour shift pattern versus the earlier 8-hour pattern and to assess the overall level of support for a permanent introduction of the new shift policy. The vast majority of officers preferred 12-hour shifts. It is of note that the consultation did not disclose that the USP would alter the manner in which leave was calculated and that the recalculation would lead to a reduction in calendar days allowed. In November 2020 the Commissioner circulated the draft USP to which the RCIPA submitted a reply in December 2020 setting out its objections. The new USP came into effect on 1 January 2021 cementing the new shift pattern together with the revised calculation for annual leave.
The Commissioner's case is that because officers are working 12-hour shifts, of which one hour is unpaid for lunch, he was bound to calculate the annual leave entitlement by using a factor of 11 hours per day to comply with the legislation...
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