Rosworth Mclaughlin Plaintiff v Ministry of Home Affairs ex parte Eric Bush, Chief Officer First Defendant The Civil Service Appeals Commission Second Defendant
| Jurisdiction | Cayman Islands |
| Judge | The Honourable Mr. Justice Richard Williams |
| Judgment Date | 16 March 2015 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 161 OF 2014 |
| Date | 16 March 2015 |
and
Hon. Justice Richard Williams
Mr. McLaughlin (‘the Plaintiff’) has been employed with the Cayman Islands Fire Service (‘CIFS’) since 1979. He rose through the ranks and was promoted tothe post of Deputy Chief Fire Officer. On 25 March 2013 he was appointed as Acting Chief Fire Officer.
On 3 July 2013 the Cayman Islands Government announced a voluntary separation policy for qualified members of the Civil Service. On 31 October 2013 the Plaintiff submitted an application pursuant to the policy. The application was refused by the Voluntary Separation Committee as the Plaintiff did not fulfil the requisite criteria.
The Plaintiff has been on health leave since 14 February 2014 and has been providing medical certificates in the interim when requested to do so by the employer. It appears that this health leave was caused by injuries received in the line of duty.
On 24 February 2014 the Plaintiff submitted an application for the advertised post of Chief Fire Officer.
On 25 February 2014 the Plaintiff was informed in writing by the First Defendant that, following a review conducted by the Chief Fire and Rescue Adviser in the United Kingdom (‘the Adviser’), the CIFS was to be restructured. He was informed that the post of Deputy Chief Fire Officer would be removed as a part ofthe restructuring of the management, whilst the post of Chief Fire officer would remain.
The First Defendant went on to say in the letter that, having considered the Plaintiffs wish to voluntary separate from the public service and the recommendations from the Adviser for restructuring, he was exercising his powers pursuant to section 44(6) of the Public Service Management Law (2011 Revision) (‘the Law’). That section enables the Chief Officer to retire a staff member in order to improve the efficiency of the civil service entity, but in accordance with the procedures established in personal regulations for retiring civil servants. The First Defendant stated in the letter that pursuant to section 44(1 )(b) of the Personnel Regulations (2011 Revision) (‘the Regulations’) that he was giving the Plaintiff written notice of his intention to retire him from the CIFS to improve the organisation. Section 44(1 )(b) of the Regulations provides that before determining whether to require a staff member to retire under section 44(6) of the Law the staff member must be advised of the intention to require his retirement to improve the organisation, and to provide him with an opportunity to explain his position. Section 44(1 )(c) of the Regulations requires the appointing officer to then re-evaluate the effect of retiring the staff member in light of the explanation provided by the staff member, and thereafter notify the staff member of the results of the re-evaluation. Section 44(2) of the Regulations provides that after the section 44(1) procedure has been completed, if the appointing officer isstill of the view that retiring the staff member will improve the efficiency of the civil service entity, then he may retire the staff member pursuant to section 44(6) of the Law and when doing so must comply with Section 44(3) of the Regulations. Accordingly, in the letter the First Defendant provided details of the benefits the Plaintiff would receive and properly invited a response pursuant to section 44(1 )(b) of the Regulations by 3 March 2014.
On 3 March 2014 the Plaintiff replied in writing to the First Defendant. The Plaintiff indicated that the offer was being ‘seriously contemplated’, but explained that he wished to have further discussions and time before reaching a final decision. In light of the content of the letter the First Defendant extended the response period to 10 March 2014.
On 9 March 2014 the Plaintiff again wrote to the First Defendant. In the letter he indicated that he was prepared to retire early from the CIFS, but he sought to address a number of issues. He highlighted that his application for voluntary separation in 2013 should not be viewed as a relevant consideration in what amounted to an ‘involuntary termination of service by the employer.’ The Plaintiff indicated that he did not agree with the rationale for his early retirement based on the Adviser's recommendations and the First Defendant's decision to restructure the organisation.
In the 9 March letter the Plaintiff also complained that he was being denied the opportunity to be interviewed and considered for the post of Chief Fire Officer saying that the circumstances seemed to be ‘unfair, biased and unreasonable,’ especially as he had been acting in that post for the past year. However, the First Defendant contends that this is not so. The Plaintiff was informed on 18 June 2014 that he had been shortlisted for the post. He was, along with all the other applicants for the post, asked to submit a five-year strategic plan in support of his application within a stipulated time. The First Defendant contends that this has still not been done by the Plaintiff despite him and his attorneys requesting several extensions of time for him to do so. In fact, it is contended that he was given a more favourable opportunity to apply, for by giving these extensions he had been afforded more time than the other applicants to prepare.
In the 9 March 2014 letter the Plaintiff indicated his upset at being personally served with the 25 February letter by the First Defendant and by the letter then being read out to him in full. However, it appears that the Plaintiff has failed to recognise that section 44(1)(b) of the Regulations requires the staff member to be advised both orally and in writing. He also complains that notification should have waited until after his return to work, although it appears that he is still off work at this time.
In the 9 March 2014 letter, the Plaintiff went on to decline the offer made by the First Defendant. He highlighted that this was not a voluntary separation but it was now an involuntary termination of service. He made a counter-offer in relation to benefits that would be acceptable for him if he were to retire. I pay no regard to the detail of the counter offer because the 9 March 2014 letter is headed ‘without prejudice.’
On 20 March 2014, the First Defendant replied to the Plaintiff. He stated (as required by section 44(1 )(c) of the Regulations) that he had given full consideration to the representations made in the 9 March letter and had reevaluated the effect of retiring the Plaintiff to improve the efficiency of the CIFS. As permitted under section 44(2) of the Regulations, the First Defendant reiterated that he was of the view that retiring him would improve the efficiency of the CIFS. However it is evident that a decision was not finalised or moved on to the section 44(3) stages because the First Defendant then made an increased ‘final offer’ of settlement terms. The First Defendant requested confirmation of acceptance of this offer by or on 24 March 2014.
On 21 March 2014 a letter was sent by the First Defendant to the Plaintiff confirming that when the Ministry of Home Affairs assumed responsibilities for the Fire Department on 1 July 2013 it continued the Plaintiffs appointment as Acting Chief Fire Officer from 12 July 2013 until further notice. It also noted that,as he was on sick leave from 14 February until 31 March 2014, the acting appointment would cease during that time and that the Deputy Chief Fire Officer was appointed as the Acting Chief Fire Officer.
On 24 March 2014 the Plaintiff wrote to the First Defendant seeking an extension of time to reply to the offer of settlement contained in the 20 March 2014 letter. By letter dated 25 March 2014 the Acting Chief Officer of the Ministry acceded to that request granting an extension until 9 April 2014.
On 9 April 2014 the Plaintiff wrote to the First Defendant, declining the offer of settlement, and indicating that his legal advisers had told him that what he viewed as being a decision to terminate his services in the letter of 20 March 2014 was ‘illegal, ultra vires, irrational, procedurally irregular and in breach of the rules of natural justice.’ He added that there was no credible evidence or rational basis in support of the decision to abolish any of the two posts of Deputy Chief Fire Officer and that the exercise of statutory power to abolish the post which he holds was ‘irrational and void.’
On 29 April 2014 a further without prejudice letter was sent by the Acting Chief Officer of the Ministry to the Plaintiff. It indicated that full consideration had been given to the above-mentioned letters sent by the Plaintiff and that a ‘final offer’ of settlement was made. I note that the term final offer had also been usedby the First Defendant in his letter of 20 March 2015, and despite this, there were ongoing negotiations and an increased revised offer. It appears that final does not mean final in these negotiations. Again, I pay no regard to the substance of the offer, as it appeared in a without prejudice letter. The letter required confirmation of acceptance of the latest ‘final offer’ on or before 23 May 2014.
On 22 May 2014 the Plaintiff lodged an appeal dated 21 May 2014 with the Civil Service Appeals Commission (‘the Commission’) against the decision of the Chief Officer, Ministry of Home Affairs which he contends had been taken on 29 April 2014. I note with interest that the Notice of Appeal was filed on the same day that Plaintiff wrote to the First Defendant stating that the latest final offer communicated in the 29 April 2014 letter was unacceptable and that remedies pursuant to the...
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