Public Service Union v Permanent Secretary of Ministry of National Security, The Chief Personnel Officer and Public Service Commission

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 05 July 2018
• Neutral Citation: VC 2018 HC 43
• Court: High Court (Saint Vincent and the Grenadines)
• Date: 05 July 2018
• Docket Number: SVGHCV2018/0086

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Henry, J.

SVGHCV2018/0086

IN THE MATTER OF AN APPLICATION FOR INTERIM INJUNCTION PURSUANT TO PART 17.1 (A) (B) OF THE CIVIL PROCEDURE RULES 2000

AND

IN THE MATTER OF A MATTER FOR JUDICIAL REVIEW OF A DECISION BY THE PERMANENT SECRETARY OF MINISTRY OF SECURITY TO TRANSFER JAMALI WHYTE FROM THE INLAND REVENUE DEPARTMENT IN THE MINISTRY OF FINANCE TO THE MARITIME ADMINISTRATIVE OFFICE IN THE MINISTRY OF SECURITY

Between:

The Public Service Union

Applicant

and

Permanent Secretary of Ministry of National Security

First Respondent

The Chief Personnel Officer

Second Respondent

Public Service Commission

Third Respondent

Appearances:

Mr. Jomo Thomas with him Ms. Shirlan Barnwell for the applicant.

Ms. Karen Duncan with her Mr. Duane Daniel for the respondents.

Judicial review - Decision to re-assign public officer — Discretionary bar — Alternative remedy — Whether there was a good arguable case with a realistic prospect of success

Injunction — Sought to restrain the transfer or reassignment of a public officer — Whether there was a serious issue to be tried — Adequacy of damages — Balance convenience.

REASONS FOR DECISION

BACKGROUND

Henry, J.

1 Mr. Jamali Whyte is employed as a junior clerk in the Inland Revenue Department (‘IRD’) of the Government of Saint Vincent and the Grenadines. He works at that IRD on the island of Union Island, one of the sister islands within the State of Saint Vincent and the Grenadines. The business of the State is administered under a central government on mainland Saint Vincent. Mr. Whyte is a member of the Public Service Union (‘PSU’), a trade union authorized to represent the interests of public officers, also referred to as public or civil servants. The public service in the State is operated in accordance with the applicable laws and a body of internal rules known as the Civil Service Orders for the Public Service of Saint Vincent and the Grenadines (1970) (‘CSO’).

2 The CSO makes provision for the transfer and re-assignment of public officers within and across ministries throughout the State. Public servants may therefore be transferred from a post on one island to another post on the mainland or to another island. Mr. Jamali Whyte claimed that he was verbally notified by and then formally advised by letter dated 25 ^th April 2018, from the Permanent Secretary in the Ministry of National Security, Mr. Godfred Pompey that he was to:

• 1. proceed on 8 days' vacation leave; and

• 2. thereafter report for duty at the Maritime Department, Cruise Ship Terminal on mainland Saint Vincent with effect from 8 ^th May 2018.

3 Mr. Whyte claimed that he had not applied for vacation leave or a transfer. He deposed 1 that he wrote 2 to the Public Service Commission (‘PSC’) indicating that he had not been given a reason for the decision to transfer him. The exhibited letter reflects that it was addressed to the CPO. Mr. Whyte indicated that the PSU wrote 3 to the Chief Personnel Officer (‘CPO’) requesting a meeting to address the matter. Mr. Whyte deposed that PSU wrote 4 to the PSC's Chairman regarding the decision. He claimed that neither he nor the PSU has received any response to the letters.

4 Mr. Whyte complained that he does not know what considerations the P.S. applied to the decision to transfer or re-assign him. He opined that it seems arbitrary. He averred that he was not given a hearing and that he views the decision as a punishment for some wrong he has not committed. He explained that based on the expenses associated with travel between the two islands, such a move would negatively impact him financially.

5 On 6 ^th June 2018, the PSU filed an application for leave to apply for judicial review of the decision by the P.S. to transfer or re-assign Mr. Whyte and an interim injunction restraining the P.S., the CPO and the PSC from transferring or re-assigning him from the Revenue Office Union Island to the Maritime Department Cruise Ship terminal Kingstown or to any location on mainland Saint Vincent until final determination or further order. It alleged that the P.S. acted unlawfully and that the decision was made without assigning reasons. It claimed that the P.S. failed to take into account relevant factors and that the decision was therefore unreasonable.

6 The P.S., CPO and PSC opposed the application for leave and for the interim injunction. They contended that Mr. Whyte did not follow the procedure prescribed in the CSO for writing to them. They submitted that this default translates to a failure by him to seek redress in the established manner. They contended further that the application for leave to apply for judicial review should be denied because Mr. Whyte has not availed himself of the available remedies. They submitted that the letter purporting to shift Mr. Whyte within the service, speaks to re-assignment and not transfer. They contended that for this reason the application for injunctive relief should be dismissed.

7 A hearing was conducted in open court on 27 ^th June 2018 and leave was granted to the PSU to file an application for judicial review within 14 days. The P.S., CPO and PSC were also restrained from transferring or re-assigning Mr. Whyte to any public office on the mainland. I undertook to give written reasons for the decision. They are outlined below.

ISSUES

8 The issues are whether:

• 1. The Public Service Union should be granted leave to apply for judicial review of the decision to re-assign or transfer Mr. Jamali Whyte; and

• 2. The Court should grant an interim injunction to restrain the P.S., CPO or PSC from transferring or re-assigning Mr. Whyte to a public office on Saint Vincent island.

LAW AND ANALYSIS

Issue 1 — Should the Public Service Union be granted leave to apply for judicial review of the decision to re-assign or transfer Mr. Jamali Whyte?

9 The Court may grant an applicant leave to apply for judicial review of administrative action if the applicant establishes a good arguable ground with a realistic prospect of success, and if there is no discretionary bar and no alternative recourse available to him. The Civil Procedure Rules 2000 (‘CPR’) 5 and the celebrated case of Satnarine Sharma v Browne-Antoine6 rehearse those legal principles.

10 The P.S., CPO and PSC do not dispute that a letter was given to Mr. Whyte as alleged. They admitted that they were served with the Notices of Application and supporting documents respectively on 7 ^th and 8 ^th June 2018 and the PSU's written submissions on 11 ^th June 2018. They filed no skeleton arguments and list of authorities or written submissions.

11 They contended that the letter from Mr. Pompey purports to re-assign Mr. Whyte and not to transfer him. They submitted that the expression re-assignment' is more apt. They argued that Mr. Whyte was being assigned within the same Ministry and therefore the move did not involve a transfer. In this regard, they pointed to the letter dated 25 ^th April 2018.

12 It states:

‘25 ^th April, 2018

Mr. Jamali Whyte

Junior Clerk

Union Island Revenue Office

Union Island

Dear Mr. Whyte

Further to our conversation on Wednesday, 25 ^th April 2018 requesting that you proceed on vacation leave with effect from 25 ^th April 2018 for eight (8) days re: CSO 6.2(a) Leave

You are further directed to report for duty at the Maritime Department, Cruise Ship Terminal with effect from 8 ^th May, 2018 on completion of your vacation leave. This re-assignment will continue until further notice.

Regards

Signed

Godfred T. Pompey (Mr.)

Permanent Secretary

Ministry of National Security, etc.

cc: Mrs. Sherma Selma Adams, District Officer, Union Island Revenue Office

Chief Personnel Officer

Director, Maritime Administration’ (underlining added)

13 The P.S., CPO and PSC invited the Court to consider whether the application contained grounds relating to a transfer. They contended that in its grounds the PSU referred to Mr. Whyte's ‘transfer’. They argued that everything turned on the language in the referenced letter. They reasoned that by using the term ‘transfer’ the PSU has not met the requirements for leave to apply for judicial review.

14 The PSU submitted that Orders 2.16 and 2.17 of the CSO provide respectively that officers are liable for transfer to any post of equivalent grade in the State; and may be transferred by the Permanent Secretary within a Ministry, between and Ministry and a Department in that Ministry if there is no change in emoluments. It submitted further that the CPO may effect transfers of officers between Departments of different Ministries after consultation with the relevant Permanent Secretary.

15 The PSU argued that pursuant to CSO 2.17(c), the April 25 ^th decision to transfer or re-assign Mr. Whyte is a function of the CPO and not the P.S. It alleged that Mr. Whyte works in the Ministry of Finance and not in the Ministry of National Security of which Mr. Pompey is the P.S. The PSU did not rebut the submissions that the word ‘re-assign’ and its cognate expressions are more apt than ‘transfer’ and related terms.

16 The PSU has invoked the provisions outlined in CSO 2.16 and 2.17. The CSO makes provision for transfer of officers within the public service. The relevant orders are 2.16 and 2.17. They use the terminology ‘transfer’. The Court's attention was not directed to any provisions which contemplate ‘assignment’ or ‘re-assignment’ of public officers. It does not seem that P.S.'s use of the word ‘re-assignment’ was based on the language in the CSO. The submissions by the P.S., CPO and PSC on this point are without merit.

17 They contended that contrary to the CSO 2.17 (2), Mr. Whyte and the PSU wrote directly to the CPO and the PSC's Chairman, instead of through the P.S. or Head of Department (‘HoD’). That order provides:

‘(2) Where an officer is, or is to be, transferred under any of the...