The Judicial Committee of the Privy Council Decisions

Legal Framework

“The services of an officer may be terminated only for reasons stated hereafter -

(i)        where the officer holds a permanent appointment - …

(ii)       where the officer holds a temporary appointment -

(a)       on the expiry or other termination of appointment for a specified period;

(b)       where the office itself is of a temporary nature and is no longer necessary;

(c)       on the termination of appointment in the case of an officer on probation;

(d)       on the termination of appointment in the case of an officer holding a non-pensionable office with no service in a pensionable office;

(e)       on dismissal or removal in consequence of disciplinary proceedings;

(f)        ill health.”

“The contention was that the commission need not look for any reasonable cause for exercising its power of dismissal in the particular case, although in practice it would normally do so; nevertheless, it is legally entitled to act without any reasonable cause but simply and solely at its own whim; though that, of course, is not what it purported to do in the instant case.

In their Lordships’ view there are overwhelming reasons why ‘remove’ in the context of ‘to remove and exercise disciplinary control over’ police officers in section 99(1) and in the corresponding sections relating to the other public services must be understood as meaning ‘remove for reasonable cause’ of which the commission is constituted the sole judge, and not as embracing any power to remove at the commission’s whim. To construe it otherwise would frustrate the whole constitutional purpose of chapter VIII of the Constitution which their Lordships have described. It would also conflict with one of the human rights recognised and entrenched by section 1(d) of the Constitution, viz ‘the right of the individual to equality of treatment from any public authority in the exercise of any functions.’ Dismissal of individual members of a public service at whim is the negation of equality of treatment.” (pp 126 to 127)

“… Regulation 50(b)(i) provides that the services of an officer holding a temporary appointment, (defined by regulation 2 to be an acting appointment) may be terminated ‘on the expiry or other termination of an appointment for a specified period.’ The regulation contemplates that, ordinarily, the period of the appointment will be specifically fixed by dates. The question is whether an acting appointment, which is not fixed by dates but which is made ‘until further notice’, is for a ‘specified period’. In my judgment ‘specified period’ does not necessarily require that the period be fixed or closed by dates, provided that by the terms of the appointment it is clear that the appointment is temporary. In this case the term ‘until further notice’ coupled with the fact that it is an acting appointment conveys that it is a temporary appointment which would be terminated upon the giving of formal notice. The giving of such notice concludes the period.” (para 48)

“… if the Service Commission wanted to appoint the respondent temporarily, then it should have specified the period for which the appointment was being made. Not having done so, the letters of 16 March 1977 and 17 September 1979, in law constitute a contract of employment for an indeterminate period. No law, correctly interpreted, permits a temporary appointment other than for a specified limited period. There cannot be a temporary appointment ad infinitum and I would so hold.

Since the Teaching Service Commission had seconded the respondent to the post of Technical Vocational Teacher 1, which is a permanent office in the Teaching Service as set out in the Division II of the First Schedule to the Education Act, Chapter 39:01, without stating any specified period, in law the respondent was appointed thereto for an indeterminate period and his appointment was not of a temporary nature, but one that made him a permanent member of the Teaching Service.”

21.             Mr Maharaj submits that, if the appeal fails, valuable constitutional protection is lost, because the Chief Fire Officer was in the practice of making many acting appointments. The effect was to create a permanent second class of officers who could be demoted at any time and this was inconsistent with the constitutional scheme set out in Endell Thomas. It also meant that the individuals lost pay because under Regulation 30(1) and 32(1) of the Fire Service (Terms and Conditions of Employment) Regulations, they were entitled to be paid an acting allowance but this was delayed for many years. They were thus treated differently from those who had actual promotions. They were also disadvantaged on seeking further promotions because they would have to retire earlier as members of the second division. Mr Maharaj relied on these matters to demonstrate the importance to the appellants of this appeal but he accepted that these complaints were not before us.

“In this case it cannot be said that the acting appointments were so inordinately long as to raise any issue of them becoming permanent.” (para 51)

23.             The Board did not call on Mr Peter Knox QC to make oral submissions, but it had the benefit of his written submissions. In those submissions, he sought to argue that Regulation 50 did not apply to acting appointments on the basis that the termination of an acting appointment simply led to resumption of the earlier office held and that an acting officeholder does not “hold” an office. To succeed on that argument, he would have to argue that the decision of Bereaux J (as he then was) in Melville v Lalla, 4 December 2000 was wrong. As Mr Maharaj pointed out, in that case Bereaux J held:

“Having regard to regulation 2, there is no basis for construing ‘termination’ of the services of an officer to mean only such termination as results in the complete separation of the officer from the Civil Service. Rather, in the case of an acting appointment it includes termination of the services of an officer where those services are being performed in a post higher than that to which he or she is substantively appointed. Upon the expiry of the specified period of the acting appointment the officer simply reverts to his or her substantive appointment. Reference to ‘other termination’ in regulation 50 relates to early termination consequent upon disciplinary proceedings pursuant to regulation 123.”

Second issue: preference on promotion and lawfulness of the PBS

“154(1) Subject to regulation 157, the Chief Fire Officer shall ensure that recommendations made in relation to an acting appointment are based on the criteria prescribed in regulation 158.

(2)       Where, in the exigencies of the Service it is not practicable to apply the principles prescribed in regulation 158, the fire officer selected for an acting appointment shall not be given any preference over other eligible officers for a substantive appointment.

155(1) Subject to regulation 157, where an acting appointment falls to be made by the Commission, the Chief Fire Officer shall notify all eligible fire officers.

(2)       For the purpose of sub-regulation (1), the notice may be in respect of an acting appointment which falls to be made within a period specified in the notice.

(3)       The Chief Fire Officer shall allow a period of seven (7) days to elapse after the issue of the notice before forwarding any recommendations to the Director for the purpose of allowing the fire officers to make representations in respect of that acting appointment.

(4)       Where representations are made to the Chief Fire Officer by or on behalf of a fire officer, the Chief Fire Officer shall forward the representations in their original form to the Director.

(5)       When submitting recommendations to the Commission for an acting appointment to an office, the Chief Fire Officer shall advise the Commission of the reasons why an eligible fire officer who is more experienced than the recommended officer is being passed over.

156.    Except in very special circumstances or in cases of sudden illness, the Chief Fire Officer shall submit his recommendation for an acting appointment to an office no later than twenty-eight (28) days preceding the date on which the acting appointment is intended to become effective.

157(1) Where an acting appointment falls to be made as a result of sudden illness or other special circumstances for a period not exceeding twenty-eight (28) days, the Commission may appoint, as a general rule, the most experienced eligible officer from within the Division in which the acting appointment is to be made.

(2)       In making an acting appointment under sub-regulation (1) the Commission shall -

(a)       examine whether the exigencies of the Service are best served by appointing an eligible fire officer from another Division to act when there is an eligible officer in the Division; and

(b)       take into account additional Government expenditure for travelling and subsistence allowances and other related expenses.

158(1) In considering eligible fire officers for promotion, the Commission shall take into account the experience, educational qualifications, merit and ability, together with the relative efficiency of those fire officers.

(2)       Where the Commission has to select an officer for promotion from officers who appear to be of equal merit, the Commission shall determine its selection on the basis of the relevant and relative experience of the officers.

(3)       In the performance of its functions under sub-regulation (1), the Commission shall take into account as regards each fire officer -

…

(f)        the duties to be performed in the office of which the fire officer has experience;

(g)       demonstrated skills and ability relevant to the office; …”

“But it does not follow that an acting appointment effected by applying regulation 158(3) criteria, requires that those appointees be preferred when permanent promotions are to be made to the substantive post. Express provision to that effect is required. In the absence of such express provision, a substantive appointment can only be based on regulation 158(3) criteria, in which experience in the acting appointment is taken into account (but not preferred).” (para 55)