Dryden, Kerrie-Ann V Ministry of Economic Growth and Job Creation, The Public Service Commission, The Attorney General of Jamaica and Audrey Sewell
Dryden, Kerrie-Ann V Ministry of Economic Growth and Job Creation, The Public Service Commission, The Attorney General of Jamaica and Audrey Sewell
Dryden, Kerrie-Ann V Ministry of Economic Growth and Job Creation, The Public Service Commission, The Attorney General of Jamaica and Audrey Sewell
152
OPEN COURT
Ms. Faith Hall instructed by the Director of State Proceedings for the Defendants.
SIMONE WOLFE-REECE, J
INTRODUCTION
[1] The Claimant, Ms. Kerrie-Ann Dryden is an Attorney-at-Law and former Senior
Legal Officer in the Ministry of Economic Growth and Job Creation (1st Defendant).
She is seeking judicial review of what can best be described as the failure of
Audrey Sewell (4th Defendant), the Permanent Secretary of the 1st Defendant, to
review the Claimants performance evaluations for the period 2016 to 2021 under
Performance Management Appraisal System (PMAS), of the Government of
Jamaica. The Claimant asserts that this failure affected payment of increments due
to her in accordance with the requirements of the Public Service Regulations and
the governments public policy procedures.
[2] Ms. Dryden is also seeking declarations that the 1st, 2nd, (Public Service
Commission) and the 4th Defendants have breached her constitutional rights to a
fair hearing and fair hearing within a reasonable time.
OVERVIEW
[3] The Claimant began working with the Public Service as a legal officer in March
2005. She spent seventeen (17) years in the public service and has held several
posts as legal officer within the Government of Jamaica. The Claimants post as
Senior Legal Officer in the offices of the 1st Defendant has acquired pensionable
status.
[4] As Senior Legal Officer at the 1st Defendant, the Claimant had a direct reporting
relationship with the 4th Defendant. The PMAS system was the medium of
evaluation of staff which has direct implications on the payment of increments to
the Claimant. The Claimant asserts that the 4th Defendant failed to initiate the
process in accordance with the requirements of the PMAS framework, which
includes agreement of a work plan and engaging and holding quarterly meetings.
quarterly meetings with her.
-3-
[5] The PMAS process recommends that the employee does what is best described
as a self- evaluation first. The employee then submits same to their supervisor who
will then review and do an assessment. If there are issues of dispute, PMAS
provides that there should be at an attempt between supervisor and officer. If that
fails, then the aggrieved party may submit a written appeal within 5 days of
receiving a copy of the completed Appraisal signed by all the required parties.
[6] In 2021 the Claimant completed her portion of the evaluations for the period 2016
-2021 to the 4th Defendant. It was not until February 2022 that the 4 th Defendant
completed her review of the Claimants performance which she categorized as
unsatisfactory. The Claimant contends that the assessment by the 4 th Defendant
was unjust and without basis
[7] The Claimant says she has sought to engage the 1st and 2nd Defendant in writing
to dispute the assessments but they have failed to facilitate the process under
PMAS for her dispute to be addressed.
[8] The Claimant asserts that the 1st and 4th Defendants have delayed processing her
requests for a PMAS review of the reports. This has had directly affected her
receiving her increments and has affected her personally. Specifically, she has
stated failure to pay over her increment at the stipulated times has affected the
calculation of her pension.
[9] The Claimant resigned her post as Senior Legal Officer at the 1st Defendant on
August 10, 2022.
[10] The Claimant is of the view that seeking orders of mandamus is her only redress
for the prompt processing of the PMAS review. On October 19, 2022 K. Anderson,
J granted leave to the Claimant to apply for orders of mandamus. The Claimant
filed a Fixed Date Claim form on October 31, 2022 and an Amended Fixed Date
Claim Form seeking the following orders:
9. Such further and/or other relief that this Honourable Court deems just.
[11] The evidence before the Court is contained in four (4) affidavits of the Claimant.
The first two (2) were filed on November 1, 2022, December 16, 2022 respectively
-5-
and final two (2) were filed on January 19, 2023. The Defendants have filed two
(2) affidavits in response to the claim. The affidavit of Audrey Sewell in response
and the affidavit of Jacqueline Mendez in response both filed on January 12, 2023.
Full submissions orally and in writing were made by Ms. Chapman and Ms. Hall. I
thank Counsel for same, even though I have not reproduced them in their entirety
I have considered them in full and referred to them as I have addressed the issues
for my consideration.
PRELIMINARY OBJECTION
Defendant’s Submissions
[12] At the hearing, Ms. Hall made oral submissions in respect of a preliminary oral
application for the Court to use its powers pursuant to CPR. 29.1 and 30.3 to
exclude evidence and strike out portions of the Claimants affidavits which she
deemed to be scandalous. In particular, it was submitted that the Claimant’s 3 rd
Affidavit filed on January 19, 2023 does not comply with the law and the rules of
evidence. Issue was taken specifically with paragraphs 22 ,26; 28 - 29; 30 - 35;
43 and 44 of the affidavit. Also the 4th affidavit of the Claimant filed on January 19,
in respect of paragraphs 3 - 5.
[13] Counsel submitted that the matter before the Court is one of judicial review. The
Claimant is seeking orders of mandamus specifically in relation to the completion
of her performance reviews and payments of increments. The paragraphs
identified above have no bearing on the Court’s determination of the issue.
Counsel concluded they were irrelevant and provided no probative value to the
determination of the claim. The claim is not about the Claimant’s performance of
her job and performance of the unit she formerly led. The paragraphs are therefore
irrelevant and should be struck out.
[14] Ms. Hall also submitted that the PMAS is not the subject of these judicial review
proceedings. It is not for the Court to perform its own assessment, which is what
the Claimant is purportedly seeking to do.
-6-
[15] Ms. Chapman responded to the application on the basis that the application should
have been made in chambers on the 24th January, 2023. The substantive content
of the PMAS are extremely relevant to these proceedings, as failure to follow
PMAS is the crux of the matter. Any effort to strike out contents of the PMAS should
not be upheld.
[16] The performance issue raised is in direct relation to the 4th affidavit of the Claimant,
in relation to the circumstances when the PMAS took place. The Defendant has
failed to meet the standard in the relevant unit. All the evidence together will give
a wholistic view in order to arrive at a just and balanced conclusion or
determination.
[17] Ms. Chapman rejected the argument that the paragraphs identified have no
probative value, stating that this view is incorrect. Counsel submitted taking in the
context, it is relevant to the principle of fairness. It is whether the party acted fairly,
impartially and with transparency.
[18] The Court is of the view having assessed the paragraphs outline that the they
speak to the extensive work done by the Claimant. It seeks to challenge the
veracity of the review done of her under PMAS I must agree that whilst this point
should have been taken prior to the trial of this claim. The test is still whether the
evidence is relevant. I cannot agree that the evidence is relevant to the
determination of the issues before the Court and therefore those paragraphs as
outlined in paragraph 12 are struck and will not form part of the evidence for the
Courts deliberation.
[19] It is settled law that judicial review is a process in which certain administrative
remedies are available. Persons aggrieved with the decision-making of a public
-7-
body or authority make seek such orders with certain parameters. It is also settled
law that the Court exercises this function in a supervisory capacity. Judicial review
is the process by which this Court exercises its inherent supervisory jurisdiction
over inferior courts, tribunals and other bodies or persons performing public law
functions to ensure that their decisions do not offend the core principles
underpinning administrative law. It is now a well-established principle of law that
the core principles pertain to illegality, irrationality or procedural impropriety in the
award.
[20] In order to invoke the supervisory jurisdiction of the Court, the Claimant must allege
that at least one of these grounds - ‘illegality’, ‘irrationality’ or ‘procedural
irregularity/impropriety - arose in the decision-making process by the public
authority’. The grounds of judicial review were outlined in the oft-cited case of
Council of Civil Service Unions and Others v Minister for the Civil Service1. I
rely on the following statement by Lord Diplock at page 950 of the judgment, in
which His Lordship stated that:
“By ‘illegality’ as a ground for judicial review I mean that the decision-maker
must understand correctly the law that regulates his decision-making power
and must give effect to it. Whether he has or not is par excellence a
justiciable question to be decided, in the event of dispute, by those persons,
the judges, by whom the judicial power of the state is exercisable.
1 [1985] AC 374
-8-
[21] The decision-making process sought to be reviewed in this case relates not to the
making of a decision, but the failure to make a decision. Where the act complained
of consists of an alleged failure to perform a duty, such circumstances do not make
the public authority immune from the process of judicial review. This was the
position in the dicta of Lord Wilberforce in Inland Revenue Commissioners v
National Federation of Self-Employed and Small Businesses Ltd2.
“It has long been accepted that a refusal, especially by a public institution,
to perform a public duty is subject to judicial review. Lord Diplock in Council
of Civil Service Unions and Others v Minister for the Civil Service
[1985] AC 374 (‘CCSU v The Minister’), made that point clear when he
said, in part, at page 408:
Issue 1: Whether the 1st and 4th Defendants acted in contravention of regulation 38
of the Public Service Regulations and public policy guidelines within the PMAS
“38.- (1) Subject to the provisions of this regulation an increment shall not
be suspended, deferred or withheld except by the Governor-General acting
upon the recommendation of the Commission.
(a) notify the officer in writing at least one month before the date on
which the increment is due of the reasons for which he considers
that the increment ought not to be granted; or
(3) he may suspend for a period not exceeding three months the
payment to that officer of the increment to which the notification
relates, and shall at the end of the period of suspension-
[23] Ms. Chapman submitted that the orders should be granted as the Defendants have
breached the provisions of the Regulations, specifically regulation 38 and the
PMAS policy guidelines by failing to provide the Claimant with a fair hearing within
a reasonable time. Ms Hall has submitted that the orders of mandamus nor the
declarations being sought should be made as there has been no breach of the
Regulations or the PMAS. She argued that the Defendants have acted within the
law. It is her contention that regulation 38(7) does not apply since here has been
no act of suspension, deferral or withholding of an increment by the 4th Defendant
within the meaning of the regulation. In support of this submission she relied on
affidavit evidence of Jacqueline Mendez5, in which Mrs. Mendez confirmed that
regulation 38(7) is not applicable in the instant case since no process has been
undertaken by the Public Service Commission to give effect to the granting of a
special increment.
ANALYSIS
[24] The Public Service Commission is established under Section 124 of the
Constitution. The powers of control and management of the Public Service
Commission are conferred on it by virtue of Section 125 (1) of the Constitution.
[25] The Public Service Regulations are secondary legislation, entrenched within the
laws of Jamaica by virtue of Section 2 of the Second Schedule of the Constitution.
The Regulations make provisions for the appointment, removal and disciplining of
officers within the public service.
[26] The PMAS, unlike the Regulations is not secondary legislation and therefore lacks
legislative authority with which the Regulations are applied and enforced.
However, the PMAS forms part of public policy guidelines which guides the work
process and assessment of public officers. It is considered as being important in
streamlining efficiency and fair evaluations within the public service. Failure to
adhere to its provisions can result in a determination of breaches of inherent rights
that an aggrieved party.
[27] The payment of increments is provided for in the Staff Orders for the Public
Service. Order 6.4.1 which states that increments are normally paid on the
anniversary date of appointment to permanent employees who demonstrate fully
satisfactory performance on the job during the previous year. Increments, however
may be withheld as a result of unsatisfactory job performance or as a penalty
following disciplinary procedure. Where increments are to be withheld, the
employee must be notified at least two months before the increments are due.
[28] Applying this position to the instant case, the Court concludes that neither does
Staff orders or regulation 38 confer on the Claimant an absolute right or entitlement
to the payment of increments, on the anniversary of her appointment. It is a
discretionary measure that can be implemented based on the prerequisite of a
good performance review, which must be done annually to determine if the
increment may become due.
[29] The regulations further provide that there are certain circumstances where the
granting of an increment may be prejudiced, such as (a) lack of efficiency, (b)
unsatisfactory service or conduct or (c) failure to pass a requisite examination
- 12 -
[30] The regulations stipulate timelines within which a suspension or deferment of the
increment can be done. A suspension can be for no more than three months and
a deferment for no more than six months. Where the is unable to provide the
requisite notice, the 4th Defendant has an additional duty to escalate the matter to
the Chief Personnel Officer of the Commission, for the Commission to recommend
to the Governor-General whether the payment of the increment ought to be made
on the due date.
[31] Mrs. Mendez averred that based on checks, there was no record that any
document in relation to the non-payment of the Claimant’s increment had been
received by the OSC. In the circumstance, there was no communication regarding
compliance with regulation 38 in relation to the Claimant that existed, and on which
the Public Service Commission could reasonably be expected to act.
[32] The evidence is undisputed that there have been no performance evaluations done
in respect of the Claimant between 2016 and 2021. There is no evidence to support
that during that time period either the Claimant or the 4th Defendant made any
inquiries as to why there was no performance evaluation in relation to the Claimant.
The Court finds that this is somewhat curious on part of the Claimant and the 4th
Defendant. It is indeed remarkable that the Claimant a Senior Legal officer, with
many years’ service in the public service, who was working well and who remained
at the salary since the year 2015 never sought to initiate the process before 2021.
- 13 -
[33] It is equally remarkable I find on the part of the 4th Defendant that based on her
affidavit evidence6 of the numerous concerns that had been raised re the
Claimants absenteeism from work and general deficiencies at work that she as the
Permanent Secretary did not seek to ensure that evaluations were done on an
annual basis for a senior legal officer who based on her evidence was under
performing.
[34] There is however no evidence that the 4th Defendant sought to withhold, defer or
suspend any increment due to the Claimant. The Court is not of the view that it can
be inferred from the evidence either as both the Claimant and the 4 th Defendant
failed to complete requirements under PMAS to facilitate an evaluation of the
Claimant. The 4th Defendant did not dispute that no notice pursuant to regulation
38 was sent to the Claimant, nor did she dispute that no notification was sent to
the Chief Personnel Officer for the Commission’s recommendation to the Governor
General as to whether the payment of the increment ought to be paid to the
Claimant when it became due.
[35] The Court concludes that in the instant case there was no performance evaluation
therefore there was no basis on which consideration could be given for increments
to be paid to the Claimant. There also is no evidence that the 4th Defendant
withheld any increment from the Claimant. Further, the Court finds that based on
PMAS procedure, self -evaluation is a part of the evaluation process, which the
Claimant failed to do for 2016-2021, it cannot be concluded that the actions or lack
thereof by the 4th Defendant amounted to withholding the increment from the
Claimant.
[36] The Claimant, not having satisfied the Court that she has a legal right or entitlement
to payment of increments, there is no basis on which the Court could grant orders
3 and 4 of declarations sought in the Amended Fixed Date Claim Form.
[37] In her affidavit evidence in response, the 4 th Defendant did not dispute the delay
between 2016 and 2020 in conducting the Claimant’s evaluation. The 4 th
Defendant agreed that there was delay but that it was partially attributable to the
Claimant, as the Claimant herself failed to initiate her work plan and send to the
4th Defendant until June 2021. In her affidavit7 she stated:
“The Claimant had a duty to prepare the work plan for discussion as well
as completing her self-assessment in the OMAS report however she never
initiated this process prior to June 2021. It was not till around June 4, 2021
that the Claimant submitted in bulk her PMAS reports for the years 2016-
2017, 2017-2018 and 2018-2019. PMAS report for 2019-2-2- and 2020-
2021 were submitted September 2, 2021”.
[38] The 4th Defendant admits that the timing of submission of the reports and demands
of her desk she was not able to review them at the point they were submitted. I do
not find that evidence to be unreasonable. However, the Claimant submits that
further delay occurred after January 2022 when the 4th Defendant completed the
outstanding PMAS reports for the period 2016 – 2021 and the Claimant was
dissatisfied with the assessments, the Claimant contends she could not obtain a
formal hearing to resolve her dispute within a reasonable time.
[39] The further evidence of the 4th Defendant is that where there is a dispute the first
step is for the officer and the supervisor to try to resolve same. It seems that this
was not done, and little or no effort was made on either the part of the Claimant or
the 4th Defendant.
[40] The 4th Defendant averred that once the PMAS reports for the periods were
completed, her comments regarding her assessment of the Claimant’s
performance were fair and reasonable. The 4th Defendant further averred at
paragraph 16 of her affidavit in response to the fixed date claim form that:
[41] In light of this dispute between the Claimant and 4th Defendant, I find that there
was a need for expediency to be employed by the employer especially having
regard to the fact that there had already been a delay of about five years in
completing the assessments for 2016 - 2021.
[42] Section 2.10 of the PMAS provides the performance management appeals
process8. It provides 13 possible steps. At page 23 it states:
1. The problem and basis for disagreement must have been identified
3. If after completing 1 & 2 the Claimant and the 4th Defendant cannot resolve
the issue, the intervention of the Human Resources department should be
[43] Based on the provisions of section 2.10, it further emphasizes that the PMAS policy
in relation to disputes regarding Performance Appraisals are intended to be
collaborative, resolved with due expedition, and within a reasonable and timely
manner and with avoidance of any undue delay. It is without doubt that those
guidelines were not employed here.
[44] The issue of delay in the decision-making process of a public authority leading up
to an application for judicial review was considered by the Full Court in Kevin
Simmonds v Ministry of Labour and Social Security and Attorney General9,
Jackson-Haisley, J posited these questions that I think are important:
[45] The matter of delay of a public authority to make a decision is no doubt a real risk
of prejudice to the party personally and directly affected by the decision. The
Claimant averred that the delay in processing the PMAS reports over the 2016 –
2020 period had adverse implications on her calculating her pension.
[46] In my view that when one assesses the evidence, it is patently clear that there was
delay by the Claimant in submitting the PMAS reports. There was delay on the part
of the 4th in completing the review of same. Then was delay of at least eight months
between the submission of the reports by the 4th Defendant and the proper
procedure of initiating of the appeals process was never employed before the claim
was filed.
[48] At paragraph 47 of her judgment in Derrick Wilson, Harris JA went on to state the
following:
[49] I find that on a balance of probabilities that when the entire evidence is assessed
it cannot be concluded that the Defendants acted procedurally unfair and unjust
towards the Claimant.
Issue 2: Whether the 1st and 4th Defendants breached the Claimant’s right to a fair
hearing within a reasonable time under Section 16(2) of the Charter of Fundamental
Rights and Freedoms
[50] The Claimant seeks constitutional relief for breach of her right to a fair hearing
within a reasonable time. The right to a fair hearing within a reasonable time is
protected under Section 16(2) of the Charter of Fundamental Rights and
Freedoms. Ms. Chapman submitted that based on the facts outlined in the
Claimant’s case, the Claimant’s right under Section 16(2) of the Charter was
contravened. As a result, the Claimant requests that the Court invokes its power
under rule 56.10(1) and (2) of the CPR to order declarations as a remedy for
breach of her constitutional right.
“In the determination of a person’s civil rights and obligations or of any legal
proceedings which may result in a decision adverse to his interests, he
shall be entitled to a fair hearing within a reasonable time by an
independent and impartial authority established by law.”
Claimant, however has a burden of proving that the violation has occurred. If the
Claimant discharges this burden, then the burden shifts to the Defendants. The
distinction must be made that in the instant case, the issues do not concern
constitutionality of legislation but whether the actions of the Defendants, as agents
of the State contravened the Claimant’s fundamental right and freedom. Therefore,
the Defendant’s burden is to prove that the alleged breach has not occurred. The
standard of proof required in determining both the Claimant and the Defendants’
cases is on a balance of probabilities.
[53] In determining the issues, the Court also applied its mind to Strasbourg
jurisprudence, which apply and interpret Article 6(1) of the Convention for the
Protection of Human Rights and Fundamental Freedoms, referred to as the
European Convention on Human Rights (‘the Convention’ or ‘ECHR’). Article 6(1)
of the Convention, which contained in its preamble are similar words found in
Section 16(2) of the Charter, provides that: -
[54] The approach of the Strasbourg Court is that the factors it considers in determining
whether a public authority acting on behalf of the State has breached the
applicant’s right to a fair hearing within a reasonable time are (i) the complexity of
the case, (ii) the conduct of the applicant and of the relevant authorities; and (iii)
what is at stake for the applicant in the dispute. These factors were derived from a
line of authorities including, Thomas John Crompton v The United Kingdom
Application no 42509/05; Nicholas Frydlender v France Application no
30979/96; Lupeni Greek Catholic Parish and others v Romania Application
- 20 -
[55] The Courts in Jamaica in previously decided cases have also been guided by
these cases when asked to determine a Claimant’s fundamental right and
freedoms under Section 16(2) of the Charter as was the approach in Kevin
Simmonds v Ministry of Labour and Social Security and The Attorney
General of Jamaica12 I find that an additional factor must be added, which is the
length and nature of any delay within the entire circumstances and course of the
proceedings.
[57] Upon a comparison between the rights in Sections 16(1) and (2) of the Charter,
the Courts have afforded different treatment to the right in civil proceedings than
in criminal proceedings. The distinction in treatment of the rights can be drawn
from the application of the right in judgments arising from cases of Herbert Bell v
Director of Public Prosecutions [1985] 1 AC 937; [1985] 2 All ER 585; Spiers
[58] The common factor of unusual or unreasonable delay in these cases was sufficient
material for the Courts to find that there had been a breach of the right to a fair
hearing within a reasonable time. The fact of the delay complained of may or may
not suffice for the Court to determine that a fair trial is no longer possible because
there are other relevant circumstances the Court may consider in deciding whether
the remedy of bringing an end to the proceedings is an appropriate remedy, as a
result of the breach of the accused’s right to a fair hearing within a reasonable
time. Where there is a breach of the reasonable time guarantee, it is less likely that
the individual in criminal proceedings will be able to receive a fair trial, irrespective
of the circumstances of the delay. Whereas, in the case of civil proceedings, the
fact of a breach of the reasonable time guarantee by reason of delay carries less
weight and other factors are attributed equal or more significant weight in
determining whether the right to a fair hearing (or trial) has also been breached.
[59] Even though the Courts apply a generous and purposive interpretation to
constitutional provisions, the Constitution nor the Court’s power under Part 56 to
adjudicate hybrid judicial review and constitutional claims should be used
arbitrarily. The purpose of the administrative and constitutional relief is not to
punish agents of the State for failing to act, but rather to ensure good governance
and accountability of administrative functions and vindicate constitutionally
protected rights of the individual against breach of those rights by actions or
inaction of the State in the exercise of its administrative functions.
[60] In the instant case it must be addressed whether the administrative process of
performance evaluation can be placed on equal footing as legal proceedings or
disciplinary proceedings. The Defendants have submitted that in the instant case
there was no charge or sanction that the Claimant was at jeopardy for and that
these type of administrative proceedings were never contemplated within the
meaning of the right to a fair hearing pursuant to section 16(2) of the Charter.
- 22 -
[61] I agree with the Defendants Counsel in that submission. Section 16(2) of the
Charter states:
[62] In assessing the provision, I am not of the view that the legislators contemplated
performance evaluations as a determination of a persons’ civil rights, neither can
the PMAS process be deemed to be legal proceedings. I therefore am of the view
that declarations sought for a breach of s.16 (2) cannot be granted.
[63] The right to due process is a long standing principle known to the common law and
is a deeply entrenched part of the principles of natural justice. Quite evidently, the
terms “due process” and “natural justice” have been invoked interchangeably to
arrive at the same result of ensuring justice and fairness in administrative decision-
making. Whichever term is used, there is the requirement for public authorities to
meet the now well-established standard of procedural fairness in public
governance, administrative decision-making, which includes adjudication of
matters involving civil consequences to individuals directly affected. The basis of
due process is therefore to ensure the individual is protected by what is fair, just
and reasonable. It has been expressed through the right to a fair hearing, now
constitutionally guaranteed in the determination of an individual’s civil rights and
obligations and interests.
[64] According to the learned authors of De Smith’s Judicial Review, (Sixth Edition),
Woolf, Jowell, Le Sueur, Ch 7, para 7-003, the term natural justice has largely been
replaced by a general duty to act fairly, which is a key element of procedural
propriety. The nature of the right to a fair hearing was considered in Ridge v
Baldwin, in which Lord Morris at paragraph 113 observed that where a public
authority is under a statutory obligation to comply with regulations made under the
Act: -
- 23 -
Apparent bias
[65] The nature of the right to a fair hearing was considered in Magill v Porter; Magill
v Weeks13. The House of Lords confirmed that it is possible that the right can be
abrogated in circumstances where there is sufficient evidence to conclude that bias
existed within the scope of the procedure that was undertaken in the decision-
making by the public person or body of persons. Lord Hope of Craighead noted at
para 99 – 103 of the judgment that the proper test for apparent bias is “… whether
the fair-minded observer, having considered the facts, would conclude that there
was a real possibility that the tribunal was biased.”
[66] The right to a fair hearing extends to decisions public authorities take in
accordance with the statutory duties conferred on them. It therefore follows that
the decisions of the 1st and 4th Defendants in accordance with the statutory duties
conferred by the Public Service Regulations, any other applicable statute must
not offend any officer’s constitutional rights. The Regulations do not address the
matter of performance appraisals. However, the Staff Orders in Chapter 9 address
the matter of performance management by outlining an acceptable standard of
procedure that the Permanent Secretary or Head of Department (the assessor) on
the one hand, and the employee (the assesse) on the other hand must follow. The
nature of the procedure imposes mutual responsibilities on both the assessor and
the assesse.
13 [2001] UKHL 67
- 24 -
[67] In the Claimant’s evidence, she alleged bias in the appeals procedure because the
Human Resources Department of the 1st Defendant failed to follow proper
procedure outlined in the PMAS guidelines. The Claimant referred to oral
representations Mr. Lee made to her at a meeting in August 2022 that Human
Resources department would convene a panel as a next step in the appeals
process, even though to her knowledge the next step would be an intervention.
However, the Claimant deponed that no steps were in fact taken to conduct a
hearing.
[68] The Claimant pointed to further elements of alleged conflict of interest or apparent
bias. She alleged that based on the fact that the 4th Defendant chaired the Human
Resources Executive committee; and the fact that the Director of Corporate
Services who has responsibility for supervising the Human Resources Division of
the 1st Defendant reports directly to the 4th Defendant, that is an indication that the
4th Defendant is biased against her.
[69] The Claimant pointed to further evidence of bias or lack of fairness in the process
at paragraph 18 of her second affidavit in support of the Fixed Date Claim Form.
She stated that: -
“I queried the reason for the exclusion of the intervention as the next step
and also how the panel findings would be treated as the process is that the
findings are to be sent to the 4th Defendant for her review as Permanent
Secretary but that would be a conflict in the case involving her and I. This
query was in addition to that previously communicated by me to the Human
Resources Unit. I will rely on previously exhibited emails and memorandum
to show that the 1st Defendant unduly delayed the convening of the relevant
hearing and/or processing of the dispute involving the 4th Defendant and I.
Also that the 4th Defendant failed and/or neglected to ensure that the
requisite process for disputes was implemented given her knowledge of the
Human Resources requirements of the 1st Defendant and her
responsibilities having delegated duties from the 2nd Defendant.”
[70] The 4th Defendant in her affidavit in response, denied having any malice, ill-intent
or bias towards the Claimant. The 4th Defendant stated at paragraph 13 of her
affidavit that: -
- 25 -
“I have no ill will or bias towards the Claimant. I am not aware of the
Claimant making any prior complaints that I was biased or unfair towards
her. My comments on her PMAS report were fair and reasonable based on
my assessment of her performance over the relevant period. Nevertheless,
the comments and ratings are not final as there was never a discussion
with the Claimant as stipulated by PMAS Guidelines. The issues raised in
my comments about the Claimant’s performance were not new and would
have been communicated previously to the Claimant in our many meetings
over the years as well as noted in several memoranda.”
[72] In applying the test of apparent bias, the 4th Defendant’s evidence contains
assertions denying bias, even from the viewpoint of a fair-minded and informed
observer. The proper approach is to also assess the actions of the 4th Defendant
and conduct throughout the entire ordeal complained of, to assess whether the
Claimant’s apprehensions are justified. In this regard, the matter should be
assessed objectively. See Magill v Porter; Magill v Weeks.
[73] Based on the evidence, it is difficult to conclude bias solely on the existence that
the 4th Defendant is the Chairman on the Human Resources Executive Committee
.As stated by McDonald-Bishop JA at paragraph 52 of her judgment in Jamaican
Redevelopment Foundation Inc. v Clive Banton and Sadie Banton14 referring
to the Court of Appeal of Belize in RBTT Trust Limited v Flowers, which cited dicta
14 [2019JMCA Civ 19
- 26 -
[74] It is difficult for this Court to conclude that the Claimant has provided a logical
connection the feared deviation of deciding the case on its merits. The perception
of impartiality in the process has not been substantiated.
[75] The entire course of proceedings began with the first stage of delay. The claimant
submitted the performance 5 years late. The evidence on why this occurred is
sparse. The Claimant asserted that the performance reports from 2016 to 2021
were not completed until January 2022. It is accepted based on the evidence that
both the Claimant and the 4th Defendant contributed to the delay in having these
appraisals completed.
[76] In February 2022, after the 4th Defendant completed the outstanding performance
reports, the Claimant who, was not satisfied with the 4th Defendant’s assessments
of her sought to initiate the appeals process with Human Resources Division of the
1st Defendant. In August 2022. After the Claimant arrived at an impasse with the
Human Resources Division, and it appeared no further steps were taken to attempt
to resolve the dispute, the Claimant retained legal representation and thereafter
filed the claim for judicial review and constitutional relief.
[77] One of the considerations outlined in the Strasbourg jurisprudence is the conduct
of the Claimant and public authority during the entire course of the proceedings.
An assessment of the entire proceedings does not demonstrate that the Claimant
has outright been denied her substantive or legal rights during the process.
[78] There is no indication on the evidence of an outright denial of the Claimant’s right
to be heard and respond to any allegations against her or her right to retain legal
representation during the proceedings.
[79] The fact that there is delay is not an automatic determination that there is a breach
of the reasonable time requirement. The Court must consider the nature of the
delay and whether a fair trial is still possible. The right to a fair hearing within a
reasonable time was considered in Bell v DPP and Attorney General’s
Reference (No 2 of 2001) [2004] 2 AC 72, which are authorities this Court finds
helpful in determining the reasonable time requirement within the right. The
guidance gleaned from Attorney General’s Reference (No 2 of 2001) is that the
two significant factors to consider are circumstances of the delay in proceedings
and prejudice to either parties. The House of Lords was of the view that where
there is a breach of the reasonable time requirement, this does not taint the basic
fairness of the hearing at all. The House was of the view that the rule of automatic
termination of proceedings in criminal cases upon breach of the reasonable time
requirement cannot sensibly be applied in civil proceedings, as termination of the
- 28 -
proceedings would defeat the purpose of the claim and the Claimant’s right to a
fair hearing. On that premise, remedies such as a dismissal of proceedings due to
unreasonable delay are less appropriate in civil proceedings unless (a) there is
sufficient evidence that a fair hearing is no longer possible or (b) it would otherwise
be unfair to try the Defendant.
[80] The Court finds that the Claimant has not shown that she cannot have a fair
completion of the review process, considering the timelines of when the PMAS
documents were submitted in 2021.
[81] The Court taking into account the principles of law and applied it to the
circumstances before it as reasoned above finds that the Claimant has not
succeeded in establishing that the Defendants breached her right to a fair hearing
or a fair hearing within a reasonable time pursuant to the Charter of Fundamental
Rights and Freedoms.
Submissions
[82] Mrs. Chapman argued that the Court must grant the orders sought as the Claimant
has satisfied the Court of her entitlement to them. Mrs. Hill argued that the Court
has no jurisdiction to make an order of mandamus in absence of completion of a
performance review. Mrs. Hill also argued that declarations 3, 4 and 5 cannot in
law be granted, and declarations 6 and 7 should not be granted, as those rights
have not been breached.
Analysis
[83] It is well-settled law that the grant of administrative orders is a wide, discretionary
power. In exercising its discretion, the Court will have regard to the particular
circumstances of each case. The factors the Court will undoubtedly consider is the
- 29 -
matter of delay by either of the parties and any injustice, hardship or prejudice that
will be caused by the grant or refusal of the order sought.
Mandamus
[84] In deciding whether to grant the order of mandamus for failure to act, the Court
must consider whether the duty in question is one that must be exercised because
of a mandatory duty under the statute. A duty may be mandatory but the manner
of exercising the duty is discretionary. Brooks P in Latoya Harriott briefly
discussed the issue with granting a mandatory order where the duty imposed on
the decision-maker involves the exercise of a discretion. His Lordship stated at
paragraph 21 of the judgment:
“A clear and settled principle of law is that the person compelled to the
performance of an act by an order of mandamus must have a clear duty
imposed on him as opposed to a mere discretion.”
[86] The evidence before the Court is that the PMAS appeals process had reached the
third step of intervention by a Senior Human Resource Manager in March 2022.
- 30 -
However, this appeared to be the point of impasse between the parties, as Mr.
Shaun Lee, the Senior Human Resource Manager of the 1st Defendant at the
material time had communicated to the Claimant that he would proceed to the next
step in the appeals process, which was to convene a panel, which the Claimant
asserted was not the proper procedure within the process.
[87] Based on the evidence, the Court determines that in light of the delay in completing
the PMAS appeal of performance appraisals process, which directly affects the
determination of whether the Claimant should receive payment of increments for
the relevant period, and that there is no other available remedy. The Court is
therefore fortified in its view that and mandamus in respect of order 1 only in the
amended fixed date claim form is appropriate.
Damages
[88] The award of damages in judicial review claims is a unique remedy. However, it is
a well-established principle that to recover damages in a judicial review claim, the
Claimant must first establish the private law cause of action being relied on. This
common law rule has not been changed with the introduction of Part 56 of the
CPR.
[89] The basis of the Court’s power under CPR 56.10 remains; damages sought are
only recoverable if there is a legal basis for it. There can only be a legal basis if the
Claimant’s statement of case sets out particulars of the cause of action of
defamation and/or harassment and those pleadings are thereafter proved.
[90] Ms. Hall submitted that there is no claim for defamation before the Court, as the
Claimant has failed to plead defamation, outlining to the Court the words spoken
that the Claimant alleges has caused her damage, to put the Defendants in a
position to respond. I agree with Counsel that the claim before the Court is void of
pleadings that set out the factual circumstances of defamation or harassment.
- 31 -
[91] Each party at the Courts request submitted on the issue of Costs in this matter.
They agreed that the successful party should be the beneficiary of costs in keeping
with the principles that costs follow the event. In light of the Courts findings, the
order will be that each party will bear their own costs.
DISPOSAL
2. Orders 2,3,4,5,6,7, & 8 sought in the Amended Fixed Date Claim Form filed
on December 16, 2022 are refused.