McLaughlin v Governor
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Rowe and Taylor, JJ.A.) |
| Judgment Date | 29 November 2002 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 29 November 2002 |
(Zacca, P., Rowe and Taylor, JJ.A.)
D.S. Schofield for the appellant;
S. Hall-Jones, Senior Crown Counsel, for the Governor.
(1) Benmax v. Austin Motor Co. Ltd., [1955] A.C. 370; [1955] 1 All E.R. 326, referred to.
(2) Perinchief v. Governor of Island of Bermuda, [1997] 1 LRC 171, distinguished.
(3) R. v. Devon County Council, ex p. Baker, [1995] 1 All E.R. 73; (1992), 6 Admin. L.R. 113, applied.
(4) R. v. Kent Police Auth., ex p. GoddenELR, [1971] 2 Q.B. 662; sub nom. Re Godden, [1971] 3 All E.R. 20, followed.
Public Service Commission Regulations, 1985, reg. 28: The relevant terms of this regulation are set out at para. 16.
reg. 29: The relevant terms of this regulation are set out at para. 17.
Public Service General Orders, 1987, No. 22: The relevant terms of this order are set out at para. 15.
No. 49: The relevant terms of this order are set out at para. 15.
Cayman Islands (Constitution) Order 1972 (S.I. 1972/1101), s.54: The relevant terms of this section are set out at para. 1.
s.55(1): The relevant terms of this sub-section are set out at para. 1.
(2): The relevant terms of this sub-section are set out at para. 1.
Administrative Law-public officers-abolition of office-officer”s career prospects fail completely for purposes of Public Service General Orders 1987, No. 22, if functions no longer to be performed by public service-advertisement of equivalent alternative post and retention of office in Government Estimates evidence to contrary-Government to observe Public Service Commission Regulations, 1985, reg. 29 on compulsory retirement if termination for reasons of economy and efficiency
Administrative Law-public officers-compulsory retirement-discretion to retire officer compulsorily to be exercised judicially, observing rules of natural justice-duty to consult with officer when proposal at formative stage, giving sufficient reasons and time for considered response, and considering officer”s representations
Administrative Law-public officers-reinstatement-usual remedy for unlawful dismissal of public officer is damages, not reinstatement, since reinstatement often impractical and threatens to usurp decision-maker”s function
The appellant applied for judicial review of the Governor”s decision to retire him on the ground that his office had been abolished.
The appellant was an Administrative Officer Grade 1 in the Ministry of Agriculture, Environment, Communications & Works. The office was personal to him and unique within the Ministry. Following a number of Government reorganizations, in 1998, the Permanent Secretary of the Ministry recommended to the Chief Secretary that the appellant”s office be abolished on the ground that his level of salary was inappropriate to the functions he performed and the post could no longer be justified. Shortly afterwards a further restructuring of Government Departments was announced, under which certain responsibilities would be transferred from the appellant”s Ministry to another.
The Chief Secretary obtained from personnel details of alternative posts within the public service, but none was deemed appropriate by personnel for a transfer at the same salary scale. The Chief Secretary recommended to the Public Service Commission that the appellant be retired due to abolition of office, advising them that the appellant did not
have the necessary skills and experience for a transfer. The Governor followed the Public Service Commission”s recommendation and retired him. The appellant was paid three months” salary in lieu of notice.
Unknown to the appellant, between the Chief Secretary”s commissioning a job search and making his recommendation to the Public Service Commission, the Government had advertised overseas for an equivalent post in the appellant”s field of expertise. Moreover, the transfer of responsibilities from the appellant to other Ministries did not ultimately take place, and in 1999 the Finance Committee voted against abolishing the position.
The Permanent Secretary gave evidence at the hearing of the appellant”s judicial review application, that the appellant had turned down a post offered to him, which he had previously held under a different title. The appellant denied having been informed of or offered any of the nine posts listed by personnel, and said he was qualified for and would have accepted any one of three of them.
The court dismissed the application, holding that the Public Service General Orders 1987 on abolition of office had been complied with, since it had been impossible to offer the appellant an equivalent post within the Service, and his career prospects had completely failed. He had been consulted, and the reasons for not offering him the available posts were not unreasonable in the Wednesbury sense. No procedural irregularity had been proved. The Governor had properly abolished the appellant”s office, after considering the recommendations and reasoning of the Permanent Secretary, the Chief Secretary and the Commission. The proceedings in the Grand Court are reported at 2001 CILR 249.
On appeal, the appellant submitted that (a) the termination of his employment had been unfair, since (i) his office had not been abolished, and the provisions of reg. 29 on compulsory retirement had been ignored, (ii) he had been given no reasonable opportunity to make representations, and (iii) there were opportunities for re-deployment of which he had not been informed; (b) the court should not have relied on the presumption of regularity as to the acts of public officials in the face of conflicting affidavit evidence; and (c) he should be reinstated in the office from which he had been retired.
The Governor submitted in reply that (a) the appellant had been informed of the alternative posts available in the Government Service, and had rejected one of them; the other vacancies had been unsuited to his experience and qualifications and the Chief Secretary had explained this to him; (b) since, at the time of the appellant”s retirement, his office was to be abolished and re-deployment was not an option, reg. 28 of the Regulations and Order No. 22 of the General Orders had been satisfied; and (c) damages rather than reinstatement were the appropriate remedy for any breach of the Regulations or of the policy in the General Orders.
Held, allowing the appeal:
(1) The Governor could abolish any office which he had power to
constitute under s.54 of the Constitution. However, there was little evidence to show that the appellant”s position in the Ministry had in fact been abolished in 1998 for the purposes of the Public Service Commission Regulations, reg. 28. The Government had not demonstrated that there was no further need for his functions within the public service, and in fact it had been intended that his responsibilities be redistributed. The Ministry”s overseas advertisement for the position to commence in 1999, for which the appellant was qualified, and the Finance Committee”s continued funding of his post cast doubt on the Ministry”s plans to abolish it. The Government had apparently disregarded its policy under Order No. 22 of the Public Service General Orders that an office was to be regarded as abolished only if the officer”s career prospects within the service had failed completely. Since the termination of the appellant”s employment had been motivated by the desire to save money and boost efficiency, this was not a clear-cut case of abolition (paras. 20–24; para. 35).
(2) However, it was unnecessary to decide whether the office had been abolished. The appellant had been dismissed in a procedurally unfair manner and in disregard of reg. 29 of the Public Service Commission Regulations, governing compulsory retirement. To comply with the rules of natural justice, the discretion to retire an officer compulsorily had to be exercised judicially, and he was to be given a fair opportunity to make representations in his defence when the proposal was at a formative stage. Regulation 29 expressly required consultation with the officer concerned, and the consultation process should have entailed giving sufficient reasons for the proposal to permit of a considered response, sufficient time in which to respond, and the Government”s consideration...
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