UKPC 27
Privy Council Appeal Nos 0045 and 0074 of 2010
Ashford Sankar & Others (Appellant) v Public Services Commission (Respondent)
Hermia Tyson-Cuffie (Appellant) v Public Services Commission (Respondent)
From the Court of Appeal of the Republic of Trinidad and Tobago
JUDGMENT DELIVERED BY
9 August 2011
Heard on 17-19 May 2011
Sir Fenton Ramsahoye SC
Elton Prescott SC
(Instructed by Bankside Commercial Solicitors)
Peter Knox QC
Miss Carol Hernandez
Ms Nadine Nabie
(Instructed by Charles Russell LLP)
LORD MANCE :
"The 827 In-Basket Exercise provides an assessment of an individual's "Ability to Manage." This assessment tool will be used to identity participants for the next stage in the selection process. No extensive preparation is required for this assessment exercise; more information will be available during an orientation session prior to the assessment to familiarise candidates with this type of assessment tool.
1. HOW THE IN-BASKET WORKS
The 827 In-Basket Exercise simulates certain aspects of a management position within a fictitious organisation. In this exercise, the candidate takes on the role and responsibilities of a manager and has 3 hours to respond to issues, problems and situations within the organisation.
At the time of the assessment, the candidate receives background information on the organisation as well as issues, problems and situations which require a manager's attention. Specifically, the material includes a description of the organisation and its mission, the candidate's role in the organisation, an organisational chart as well as e-mails, letters, and reports that need to be addressed.
2. WHAT IS MEASURED?
The In-basket exercise is assessing the candidate's "Ability to Manage". Specifically, the "Ability to Manage" includes these three components:
A. Planning and Conducting Activities:
- Establishing and assessing operational, organisational, budgetary, and staffing priorities.
- Initiating and then supervising the implementation of effective plans and activities in response to changing requirements or in anticipation of such changes.
- Ensuring that financial resources are used wisely and establishing relevant feedback mechanisms in order to monitor the activities and their costs.
For example, suggesting a meeting and using your calendar to schedule it as well as chairing and/or leading a meeting is evidence of Planning and Conducting activities.
B. Managing the Human Aspect of the Organization:
- Ensuring that human resources are used effectively.
- Taking into account the needs, abilities and responsibilities of each of the staff members and ensuring that tasks are assigned in a fair and optimal manner.
- Guiding staff in their work effectively.
- Facilitating continuous learning.
- Supporting appropriate development in order to promote continuous learning.
For example, Managing the Human Aspect of the Organisation is choosing suitable people, based on goals and expertise, when creating a team to work on a project.
C. Partnership and Quality of Client Service:
- Using their knowledge of the organisation in the best interests of all stakeholders (i.e., all people involved and/or affected).
- Promoting partnership and recognising one of the most important objectives of the organisation: the provision of quality goods and/or services to clients.
For example, Partnership and Quality of Client Service is knowing who from other areas in one's organisation to call on in order to meet one's objectives.
3. RESULTS OF THE IN-BASKET
Each action is evaluated within the context of the particular issue under consideration, the organisational environment, and other actions taken. The judgement of executives and senior managers concerning the appropriateness of decisions/actions taken is the standard against which the responses are evaluated.
Communication of Results
The Personnel Psychology Centre of the Public Service Commission of Canada is responsible for scoring the In-basket Exercise 827. The results are sent to the responsible human resources representative who then communicates them to you and provides you with information regarding next steps."
The role and duties of the Commission
"(1) Subject to the provisions of this Constitution, power to appoint persons to hold or act in offices to which this section applies, including power to make appointments on promotion and transfer and to confirm appointments, and to remove and exercise disciplinary authority over persons holding or acting in such offices shall vest in the Public Service Commission. …."
"13. (4) The Director shall, from time to time by circular memorandum or by publication in the Gazette, give notice of vacancies which exist in the particular service and any officer may make application for appointment to any such vacancy. Such applications shall be forwarded through the appropriate Permanent Secretary or Head of Department to the Director, but the failure to apply shall not prejudice the consideration of the claims of all eligible officers.
(5) Notwithstanding subregulation (4), a Permanent Secretary or Head of Department may with the consent of the Public Service Commission ….. give notice of vacancies which exist in offices specific to the particular Ministry or Department to which any eligible officer may apply.
(7) The failure of an eligible officer to apply for a vacancy as advertised pursuant to subregulation (5) shall not prejudice the Commission's consideration of the claims by that officer.
14. Whenever in the opinion of the Commission it is possible to do so and it is in the best interest of the particular service within the public service, appointment shall be made from within the particular service by competition, subject to any Regulations limiting the number of appointments that may be made to any specific office in the particular service.
15. Where the Commission considers either that there is no suitable candidate already in the particular service available for the filling of any vacancy or that having regard to qualifications, experience and merit, it would be advantageous and in the best interest of the particular service that the services of a person not already in that service be secured, the Commission may authorise the advertisement of such vacancy.
16. (1) The Commission may from time to time appoint one or more Selection Boards to assist in the selection of candidates for appointment to the public service and the composition of any such Board and the form in which its report are to be submitted shall be in the discretion of the Commission.
(2) On consideration of any report of a Selection Board, the Commission may, in its discretion, summon for interview any of the candidates recommended by such Board. ….
17. (1) All examinations to be held under these Regulations shall be set and the papers marked by such Examination Board as may be appointed for the purpose.
(2) The Director shall be responsible for the conduct of examinations set under subregulation (1).
18. (1) In considering the eligibility of officers for promotion, the Commission shall take into account the seniority, experience, educational qualifications, merit and ability, together with relative efficiency of such officers, and in the event of an equality of efficiency of two or more officers, shall give consideration to the relative seniority of the officers available for promotion to the vacancy.
(2) The Commission, in considering the eligibility of officers under subregulation (1) for an appointment on promotion, shall attach greater weight to –
(a) seniority, where promotion is to an office that involves work of a routine nature, or
(b) merit and ability, where promotion is to an office that involves work of progressively greater and higher responsibility and initiative than is required for an office specified in paragraph (a).
(3) In the performance of its functions under subregulations (1) and (2), the Commission shall take into account as respects each officer –
(a) his general fitness;
(b) the position of his name on the seniority list;
(c) any special qualifications;
(d) any special courses of training that he may gave undergone (whether at the expense of Government or otherwise);
(e) the evaluation of his overall performance as reflected in annual staff reports by any Permanent Secretary, Head of Department or other senior officer under whom the officer worked during his service;
(f) any letter of commendation or special reports in respect of any special work done by the officer;
(g) the duties of which he has had knowledge;
(h) the duties of the office for which he is a candidate;
(i) any specific recommendation of the Permanent Secretary for filling the particular office;
(j) any previous employment of his in the public service, or otherwise;
(k) any special reports for which the Commission may call;
(l) his devotion to duty.
(4) In additional to the requirements prescribed in subregulations (1), (2) and (3), the Commission shall consider any specifications that may be required from time to time for appointment to the particular office."
The issues – (a) illegitimate abrogation or delegation by the Commission of its duties
"The Police Service Commission informs that the sole responsibility for the conduct of examinations falls under the purview of the Public Service Examinations Board, which is a Cabinet appointed body, the management of which is the responsibility of the employer. The Board is not a part of the Police Service Commission nor for that matter any of the other Service Commissions."
"28. The Constitution requires that the powers which it has given to the Public Service Commissions, and to the Police Service Commission in particular, to appoint persons to hold or act in public offices and to make appointments on promotion must be exercised free from inference or influence of any kind by the executive. There is room in this system for the taking of some initiatives by the Cabinet. A distinction can be drawn between acts that dictate to the Commissions what they can or cannot do, and the provision of a facility that the Commissions are free to use or not to use as they think fit. The appointment of a Public Service Examination Board by the Cabinet for the Commissions to use if they choose to do so is not in itself objectionable. The advantages of using such a centralised body are obvious, and in practice the Commissions may well be content to continue to make use of them. The objection which has given rise to these proceedings lies in the misapprehension as to where the responsibility for choosing that system lies. In their Lordships' opinion the proposition in the media release of 8 July 2002 that the sole responsibility for the conduct of examinations falls under the Public Service Examination Board's purview was based on a profound misunderstanding of where the line must be drawn between the functions of the Commissions and those of the executive.
29. There is no doubt that the Police Service Commission Regulations envisage the existence of an Examination Board. Regulation 15(5) requires that the interview of a police officer who is successful in the promotion examination for promotion to any office in the Service must be conducted jointly by, among others, the chairman of the Examination Board. So the appointment of an Examination Board is an essential part of the whole process. The Constitution, for its part, does not permit the executive to impose an Examination Board on the Commission of the executive's own choosing. It is for the Commission to exercise its own initiative in this matter, free from influence or interference by the executive. It may, if it likes, make use of a Public Service Examination Board appointed by the Cabinet. There may be advantages in its doing so. This no doubt is a service that must be paid for somehow. Where resources are scarce the Commission cannot be criticised if it chooses to make use of an existing facility. On the other hand it cannot be criticised if it chooses not to do so. The Constitution requires that it must have the freedom to exercise its own judgment. It must be free to decline to use the services of the Public Service Examination Board if it suspects that the executive is seeking to use the Board as a means of influencing or interfering, whether directly or indirectly, with appointments to or promotions within the Police Service. Those are matters that lie exclusively within the responsibility of the Police Service Commission.
30. The media release of 8 July 2003 was wrong to say that the sole responsibility for the conduct of examinations for appointment to and promotion within the Police Service lay with the Public Service Examination Board, the management of which was the responsibility of the employer – that is to say, of the executive. Section 123 of the Constitution declares that the power of appointment of persons to hold office in the Police Service, including appointments on promotion and transfer, is vested in the Police Service Commission. Sole responsibility for the conduct of examinations for the appointment and promotion of police officers lies with the Commission.
31. How the Commission discharges that responsibility is a matter for the Commission itself to determine, in the exercise of its powers under the Police Service Commission Regulations. Regulation 19(1) provides that all examinations in the Police Service shall be set and marked by such Examination Board as may be appointed for this purpose. The regulation does not state in terms by whom that appointment is to be made. But, in the context of the regulations as a whole, and in the light of Part 9 of the Constitution in particular, it must be understood as reserving the power to do make the appointment to the Commission and not to the executive. …..
32. Their Lordships will therefore allow the appeal. They will declare that it is the sole responsibility of the Police Service Commission to appoint the Examination Board referred to in regulation 19(2) of the Police Service Commission Regulations and that the setting and marking of the papers by the Examination Board is subject to the ultimate control of the Police Service Commission"
"At its meeting on the 22nd November 2002 the Public Service Commission agreed to employ assessment centre techniques to assist it by way of competition in determining merit and ability for the office of the Deputy Permanent and Permanent Secretary.
To this end the Service Commissions Department contacted international consulting organizations for proposals for the conduct of assessment centre activities.
On the 16th May 2003 the Public Service Commission agreed that the Canadian Public Service Commission ("PSC-Canada") should be selected as the Consultants for the Assessment Centre exercise to assist the Public Service Commission by way of competition in determining the merit and ability for the office of Deputy Permanent Secretary and Permanent Secretary. The Public Service Commission decided that only the officers who hold a substantive office in Range 54D and above and satisfy the academic and experience requirements for the office of Deputy Permanent should be considered for the Assessment Centre exercise."
The affidavit from which these quotations come was in fact dated 6 December 2005 and filed on 9 March 2006 in separate proceedings brought by Mr Winston Gibson, but materially similar passages appear in Mrs Edwards-Joseph's affidavit dated and filed 8 February 2006 in the present proceedings.
"sought without more to give the impression that the respondent was instrumental in taking the decision to introduce ACE as well as in selecting the agency which conducted the exercises, the Canadian PPC. ….. The disclosed documents however tell a different story."
(b) The Regulations
"if it is accepted that the criteria do not have to be applied in any particular order, then no persuasive argument has been advanced …. why it cannot logically and lawfully employ a process that progressively eliminates applicants along the way. The Commission ought not to be required to apply all criteria to all applicants if it appears at an early stage that some will be unsuitable for the requirements of the particular office"
Issues (c) and (d) legitimate expectation and fairness