the republic of trinidad and tobago in the high...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2017-00137

BETWEEN

POLICE CORPORAL #14321 RICARDO MORRIS

Claimant

AND

THE COMMISSIONER OF POLICE

Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: Thursday 14th February, 2019

Appearances:

Mr. Brent D Winter for the Claimant

Ms. Monica Smith instructed by Ms Avaria Niles for the Defendant

JUDGMENT

I. Background:

[1] By Court Order of the 16th February, 2017, leave was granted to the Claimant to make an

application for Judicial Review against the Defendant for its continued failure and/or

refusal to promote the Claimant to the rank of Police Corporal with effect from the 11th

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May, 2006. Thus, by Fixed Date Claim Form filed on the 2nd March, 2017, the Claimant

sought , inter alia, the following orders:

(i) An order of mandamus pursuant to section 8(1)(a) of the Judicial Review

Act, Chap 7:08 (the “JRA”) directing the Defendant to do all that is

necessary to retroactively promote the Claimant to the rank of police

corporal with effect from 11th May, 2006;

(ii) A declaration that the continuing failure and refusal of the Defendant to do

so is irrational, illegal, unlawful and/or contrary to the principles of

natural justice;

(iii) A declaration that such refusal and/or failure to so promote contravenes

the Claimant’s rights to the enjoyment of property and equality of

treatment contrary to Sections 4 (a) and (d) of the Constitution;

(iv) An Order that the Claimant be paid all arrears or salaries, benefits and

allowances due to him with effect from the 11th May, 2006 consequent

upon his retroactive promotion;

(v) An Order for damages under Section 8(4)(a) of the JRA;

(vi) Interest and costs.

[2] Attendant to the Claim was the Claimant’s affidavit in support. In it, Mr Morris deposed

that he had been enlisted as a member of the Special Reserve Police (SRP) in March,

1992 on a part time basis, which amounted to 16 tours of duty per month, each tour

comprising a four (4) hour shift. He was transferred to the Transport and

Telecommunication branch some 2 years later in July, 1994, where, despite the fact that

his workload increased to 2 tours of duty per day with 4 hour shifts amounting to a total

of 40 hours per week, he was still classified as a part-time worker. He averred that he

continued on this latter shift until his resignation from the SRP on the 7th March, 1998,

at which time he was promoted to a regular officer in the Trinidad and Tobago Police

Service (TTPS).

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During his tenure in the SRP, Mr Morris deposes that he was required to bear the same

responsibilities as his colleagues in the regular TTPS, however, he was not entitled to

the same benefits, overtime payments, housing allowance and pension, etc.

Approximately one year after his promotion and/or appointment to the regular service,

Mr Morris attempted to apply to the Defendant, on the 23rd March, 1999, to have his

SRP service linked to his service as a Constable in the regular TTPS. Such application

was denied by memorandum dated the 19th May, 1999 on the basis that Mr Morris’

service as an SRP was on a part-time basis and thus, could not be linked. It followed,

that only full-time SRP’s could have their service linked to the regular service in the

TTPS.

Circumstances changed pursuant to a cabinet decision of the 1st April, 2000, which

allowed full-time SRP’s with two or more years of service to be automatically absorbed

into the regular TTPS at the rank of Constable. To qualify as a full-time SRP, one had

to fulfil the following requirements: (i) that you performed 2 tours of duty per day; (ii)

that you performed 4-hour shifts per day from Monday to Friday; and (iii) that you

performed in total 40 hours per week. Further, all SRP’s who qualified to be so

absorbed were permitted to have their tenure as an SRP added to their years of service

as a regular police with the TTPS. Based on this criteria, the Claimant maintains that he

would have been absorbed had he remained an SRP.

Thus, he felt aggrieved that his prior appointment to the regular service effectively and

unfairly excluded him from the benefits of having his tenure as an SRP linked to his

years of service as a regular officer in the TTPS. Thus, he wrote to the President of the

Police Association on the 20th June, 2000 outlining his case on the issue.

On the 25th November, 2004, he deposes that the Defendant published the criteria for

promotion to the rank of Corporal in the 2nd Division, which involved a point-based

assessment system. In this point system, one’s seniority was worth 10 out of the 90

points in total. Of these 10 points, Mr Morris averred that he had acquired only 7, due to

the fact that he was appointed to the regular service in the TTPS from 1998, which

meant that he would have only attained 8 years of service in the regular TTPS as at

2006, when he was assessed for promotion to Corporal.

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A list of officers approved for promotion to the rank of Corporal was thereafter

published by subsequent Departmental Order of the 26th May, 2006. Such promotions

were to take effect from the 11th May, 2006. Mr Morris’ assessment showed that he had

only acquired 73 points under the criteria for promotion in the 2004 Departmental

Order, which was a mere point shy of the 74 points needed for promotion. Had the

Defendant granted his application to have his SRP tenure linked to his regular TTPS

service in his 1999 application, he states that he would have been in the bracket of 11 –

15 years’ of seniority and thus, would have the extra point necessary to make him

eligible for promotion to Corporal. As a result, Mr Morris’ promotion to the rank of

Corporal did not occur until the 26th August, 2011.

Indeed, such was the view of the Deputy Commissioner of Police, Strategic Planning

and Development, Mr Maurice Piggott, as stated in his report dated the 24th May, 2010.

Mr Piggott agreed that the Claimant should have been considered a full-time SRP.

Thus, he was of the opinion that Mr Morris should be paid the salary arrears as well as

the payments for the vacation leave and other benefits that he should have been entitled

to as a full time SRP from 1994 to 1998.

Despite these recommendations, Mr Morris deposed that the Defendant did not link his

service as an SRP to his tenure as a regular officer of the TTPS until letter dated the 7th

July, 2015, which served to retroactively appoint him as a Police Constable from the

25th July, 1994, when his SRP service with the increased workload began. Had such

retroactive appointment occurred at the time of his 1999 application, he would have

attained 12 years seniority in the regular service and thus acquired the necessary 74

points in total for promotion on the 11th May, 2006.

Mr Morris duly applied, by letter dated the 10th September, 2015 addressed to the

Superintendent of Police, Human Resource Branch, to have his promotion to Corporal

be made retroactive to the promotion date of the 11th May, 2006. No response, however,

has been received.

Further letters were written to the Defendant that went unanswered culminating in the

issuance of a pre action letter on the 10th June, 2016 to both the Defendant and the

Solicitor General. Within this pre action letter, a request was made for disclosure of

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several documents. However, only some of these documents were referred to in the

response letter issued by the legal department of the Deputy Commissioner of Police

dated the 22nd December, 2016. This response letter indicated that some of the

documents would be forthcoming but did not make any commitment with respect to the

other documents sought.

Since then, no decision has been made to grant the Claimant’s request to have his

promotion to Corporal retroactive to the 11th May, 2006 and thus, the action herein was

brought.

[3] The parties met on the 5th April, 2017, where an extension was given to the Defendant to

file and serve his affidavit in response to the Fixed Date Claim. Permission was also

granted for an affidavit in reply if necessary.

[4] The Defendant missed its deadline for the filing of its response affidavit but was granted

relief from sanctions and a further extension by Court Order of the 1st June, 2017.

[5] The response affidavit of Ms Pamela Schullera-Hinds, Acting Superintendent of the

Human Resource Branch, was filed attendant to the application for relief from

sanctions on the 22nd May, 2017.

Pamela agreed that the Claimant worked two four (4)-hour tours per day while posted as

an SRP and that his application of March, 1999 to have his tenure in the SRP linked to

his regular service in the TTPS was indeed denied by the Defendant via memorandum

of the 19th May, 1999.

She however deposed that such denial was due to the fact that the Claimant did not

satisfy two of the criteria contained in Sections 4 and 5 of the Law Reform (Pensions)

Act Chap 23 No 59. Such criteria being (i) that the Claimant’s post as an SRP was not

pensionable; and (ii) that he had not achieved the 5 years of service required.

She did not dispute the cabinet decision of April, 2000, which purported to absorb full

time SRPs into regular TTPS service with the rank of constable. Thus, she deposed that,

as the Claimant was already enlisted in the TTPS at the time of the Cabinet decision, he

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could not have been absorbed. She added that even if Mr Morris was entitled to have his

tenure at the SRP linked, it would be for pension purposes only.

While she agreed to Mr Morris’ evidence concerning the assessment point system

generated by the Departmental Order of 2004 and 2006 for promotion to the post of

Corporal, she deposed that it was not the Defendant, but rather, the Police Service

Commission (PSC), who was responsible for promotion in the TTPS. The Defendant’s

role at that time, she stated, was merely to make recommendations to the PSC.

She agreed with the evidence concerning Mr Piggott’s recommendations and does not

dispute that the Claimant was deemed a full time SRP. However, she deposed that Mr

Morris’ promotion to Corporal on the 26th August, 2011 was via a different assessment

process as prescribed by the Police Service Act, Chap 15:01 which served to place

power with the Defendant to promote officers in the TTPS.

The letter of the 7th July, 2015 granting the linkage of the Claimant’s SRP tenure with

his service as a regular officer of the TTPS, was, according to Pamela’s evidence, given

in error as such link could only be for pension purposes. Nevertheless, she deposed that

Mr Morris benefited from that error by getting the pension benefits. Accordingly,

having received pension benefits which he was not entitled to and considering that the

linkage of his tenure was erroneous, Pamela deposed that there was no lost opportunity

of promotion to Corporal on the 11th May, 2006.

She denied receipt of any letter dated the 10th September, 2015 or any subsequent letter

of the 18th May, 2016. She however, admitted that the pre action letter of the 10th June,

2016 was indeed, sent to the Defendant and that a reply letter was sent by the Deputy

Commissioner of Police on the 22nd December, 2016 as deposed by the Claimant.

She maintained that the Claimant had been informed by letters dated the 14th

November, 2005 and another in 2006 that he did not meet the criteria for promotion to

the rank of Corporal and thus, his claim should be denied.

[6] Mr Morris replied on the 9th June, 2017. He contended that Pamela’s affidavit was based

on erroneous information provided in a report dated the 11th January, 2017 by attorney

at law, Mr Kazim Ali, who was the Acting Inspector of the TTPS Legal Unit.

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He further deposed that it is incorrect to say that he was required to satisfy criteria in

Sections 4 and 5 of the Law Reform (Pensions) Act to have his service linked.

Further, he denied that his service could only be linked for pension purposes only,

especially considering that since being linked, he has been given other benefits in

addition to pension. In any event, he never applied to have his SRP service linked

pursuant to the Law Reform (Pensions) Act but rather, due to the undisputed fact that

hours of work as an SRP was akin to that of a full time SRP officer.

Thus, in his view, Pamela’s affidavit is conflicting because she admits that a letter

linking his SRP service was indeed sent to him by the Defendant on the 7th July, 2015

but then wishes to say that it was sent in error despite the fact that it was never

rescinded.

Most importantly, he maintains that despite the linkage of his SRP service and thus, the

determination that it was indeed, full time service, he has never been paid his arrears in

salary during that period.

[7] On the 29th June, 2017, directions were given for written submissions and reply

submissions, if necessary. The matter was adjourned to the 28th November, 2017 for

oral and/or clarification of submissions.

[8] The Claimant filed their submissions on the 17th July, 2017 and the Defendant filed theirs

on the 2nd October, 2017.

II. Law & Analysis:

[9] The sole issue for determination is as follows: Whether the Defendant’s letter of the 7th

July, 2015 linking the Claimant’s SRP service to his tenure in the regular TTPS

was incorrect? Its resolution will depend largely on this Court’s interpretation of the

following documents: (i) the Cabinet Minute of the 12th July, 2000; (ii) the

Defendant’s letters of the 24th May, 2010 and the 7th July, 2015; (iii) Sections 4 & 5

of the Law Reform (Pensions) Act Chap 23:59 (the Pensions Act) and (iv) Section

184(3) of the Police Service Regulations 2007.

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[10] It is an undisputed fact between the parties that the Claimant was transferred to the

Transport and Telecommunication Branch on the 25th July, 1994, where he worked 2

tours of duty per day, each comprising a four-hour shift totalling forty hours per week

until his resignation on the 7th March, 1998. The Claimant relies primarily on the letter

dated the 24th May, 2010 issued by Mr Maurice Piggott, the Deputy Commissioner of

Police Strategic Planning and Development, which contained the following

recommendations:

a. “That the Claimant’s service with the SRP from 1994 to 1998 be reclassified to

“full time” service and not “part time”

b. That the difference in “part time” and “full time” income be paid to the

Claimant.

c. That the Claimant receive payment for his entitled vacation leave for which he

was denied and any other benefits for which he was denied.”

The recommendations from this letter were put into effect by letter dated the 7th July,

2015 from the Commissioner of Police on behalf of the Defendant, which stated as

follows:

“In accordance with the provision of the Law Reform Pensions Act 20 of 1997,

your service as a member of the Special Reserve Police with effect from the 25th

July, 1994 to the 7th March, 1998 has been linked with your service as a

member of the police service with effect from the 9th March, 1998”

[11] Pamela did not dispute that the Claimant’s service in the SRP from 1994 to 1998 was

indeed considered to be full time1. However, she states that the letter dated the 7th July,

2015 was sent in error because the Claimant was not entitled to have his service linked.

She purports to rely on Sections 4 & 5 of the Pensions Act in support of her contention

that the Claimant did not qualify for such linkage for two reasons: (i) his tenure as an

SRP was not pensionable; and (ii) he did not make 5 years’ service. Further, she

1 See para 17

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deposed that even if his service were to be linked, it would only be for pension

purposes.2

[12] Indeed, Section 4(1) of the Pensions Act does state that it applies specifically to

persons who hold a pensionable office and has completed 5 years of service therein.

However, Section 4(2) is the relevant provision as it applies directly to the Claimant’s

circumstances i.e. that his service under the SRP was not pensionable and therefore, he

was not entitled to receive superannuation benefits, coupled with the fact that such

service was only broken because of his resignation. Given those circumstances,

subsection 2 provides that the Claimant was entitled to have his SRP service preserved.

Such preservation becomes relevant by virtue of Section 5, which permits the Claimant,

upon his subsequent employment with the regular TTPS, to have his preserved service

in the SRP “count for the purposes of superannuation benefits together with his period

of service in the regular TTPS”. Accordingly, the Claimant is entitled to have his four

years of service in the SRP from 1994 - 1998 preserved and added to his tenure in the

regular TTPS for pension benefit purposes.

Thus, by specifically stating in the letter of the 7th July, 2015, that the Claimant’s

service in the SRP was linked to his service in the regular TTPS pursuant to the

Pensions Act, it does appear that such linkage was done solely for pension purposes as

contended by the Defendant. The submission that this letter was “sent in error”

therefore, was not quite accurate. It was, perhaps, more so, an issue of improper

terminology as there was nothing wrong, based on the statute, in determining that Mr

Morris’ service be counted together. Rather, it would have been clearer to state that the

Claimant’s service as an SRP “had been preserved and will be added to his service in

the TTPS for superannuation purposes”.

[13] Similarly, however, I do not find that it is completely accurate for Mr Morris to depose

that the letter of the 7th July, 2015 effectively approved the linkage of his service

“without qualification”. To my mind, it was indeed a qualified grant because the

linkage of his service was constrained and confined by the provisions of the Pensions

2 See para 9

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Act. I am further fortified in this position by the subsequent paragraph in the 7th July,

2015 letter, which states:

“You will be required to pay arrears of Superannuation Contributions for the

period of service mentioned above as required by the Police Service Regulations

2007, 184, section 3.”

The “period of service mentioned above”, as referred to in this excerpt, was the

Claimant’s service in the SRP, in which he was not entitled to and therefore, did not

make contributions to any superannuation benefits. Indeed, Section 184(3) of the

Police Service Regulations 2007 provides for the payment of arrears for such

contributions. It states:

“In addition to the contribution payable under sub regulation (1), an officer shall,

if the case so requires, pay arrears of contribution in respect of his full-time

service as an officer or in a pensionable office in the Public Service or in respect

of both.”

What is most noteworthy is that the letter of the 7th July, made no mention of the

linkage of service being for any other purpose than as stipulated in the Pensions Act

and by extension, the Police Service Regulations.

Indeed, the Claimant’s entire submissions on this issue, being, his entitlement to have

his service linked, also only referenced the Pensions Act in support3. Thus, bearing the

burden of proof, he has failed to provide any law to show that he was entitled to use his

linkage of service for seniority purposes and/or to count toward his promotion to the

rank of Corporal in the 2006 assessment.4

[14] In any event, the Cabinet Minute No 1279 of the 12th July, 2000, which purported to

have all SRP officers with an excess of two years, full-time employment absorbed into

the TTPS with the rank of Constable specifically states that such decision took effect

from the 1st August, 2000, by which time the Claimant had already been employed in

the TTPS. Further, such absorption was subject to certain criteria, to which the

3 See submission#3 of the Claimant’s submissions 4 See paras 15 – 18 of the Claimant’s submissions

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Claimant has provided no evidence of fulfilling (see Cabinet minute under (a). Drug

testing etc.). Therefore, technically, this Cabinet minute would not have applied to the

Claimant at the time of its publication and therefore, was not the instrument under

which the Claimant’s service was linked. Its provisions and stipulations were therefore

inapplicable to the Claimant’s case.

Accordingly, any retroactive linkage of the Claimant’s service was not mandated by any

Act, Official Document or Regulation but rather, completely discretionary on the part of

the Defendant and made solely pursuant to the letter dated the 7th July, 2015. The

contents of that letter, therefore, which confined the linkage of service to the provisions

of the Pensions Act, must be applied strictly.

[15] In the circumstances, the Claimant’s service in the SRP does not count toward his

points awarded for seniority in the 2006 assessment for promotion to the rank of

Corporal. Thus, I find that there is no basis for such retroactive promotion that the

Claimant seeks and therefore, his claim must fail.

Costs:

[16] Notwithstanding the general principle on costs that, the Defendant, being the successful

party, should be entitled to its costs of these proceedings from the Claimant, the Court,

by virtue of Part 66.6 of the CPR, is permitted to consider other factors, such as: (i) the

conduct of the parties, (ii) whether it was reasonable for the Claimant to bring this claim

and (iii) whether the Claimant succeeded on any particular issues.

[17] On the issue of the parties’ conduct, the Court notes the many pre-action letters sent by

the Claimant. In particular, the Claimant sent a pre-action protocol letter dated the 10th

June, 2016, in which the Claimant (i) stated the remedies sought; (ii) provided a

summary of the facts on which he intends to rely and (iii) requested disclosure on

certain documents. Most importantly, the Claimant required acknowledgment of receipt

of this letter within 7 days and a response within 30 and/or by the 10th July, 2016.

Receipt of this letter was acknowledged very briefly by the Defendant on the 15th June,

2016, merely indicating that the pre action letter was forwarded to the Chief State

Solicitor’s Department.

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Approximately one month later, the Claimant, having received no proper response,

issued yet another letter on the 14th July, 2016 indicating that the 30-day allotted time

frame for response had expired. Nevertheless, the Claimant was willing to afford

another opportunity for the Defendant to respond and properly engage in the pre action

protocols.

Such response was not forthcoming until the 22nd December, 2016, some 5 months

later, in which disclosure of only some of the requested documents were made. Most

importantly, the Defendant failed to respond to the substantive claim in the pre action

letters. This resulted in the Claimant’s Application for Leave being filed within a month

on the 12th January, 2017.

Therefore, as it pertains to the conduct of the parties, I find the Defendant failed to

properly engage in the pre action process and such failure was the main reason why this

claim was brought and the parties put to expense for same.

[18] My finding above is linked to the second factor— whether it was reasonable for the

Claimant to bring this claim.

In essence, the reasoning for the decision to link his service as given in the very brief

letter of the 7th July, 2015 was not the most clear. It left room for interpretation that

such linkage could also apply for seniority purposes and be used to argue for his

retroactive promotion to Corporal. Thus, I reiterate, had the Defendant properly

responded and put its defence to the pre action letters, the Claimant may have realised

that this claim was meritless.

[19] Finally, on an issue-based approach under Part 66.6(5) of the CPR, I find that the

Defendant was not successful on the issue of whether the letter dated the 7th July, 2015

was indeed sent in error as it submitted. I did not find it was an erroneous letter, but

rather, improperly worded.

[20] Considering the above factors, I find that the Defendant, although being the overall

winner, is not entitled to recover costs of the proceedings and that an appropriate Order

for Costs be that each party should bear its own costs of the proceedings.

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III. Disposition:

[21] Given the reasoning, analyses and findings above, the order of the Court is as

follows:

ORDER:

1. The Claimant’s Fixed Date Claim filed on the 2nd March, 2017 seeking

Judicial Review of the Defendant’s decision not to retroactively appoint him

to the rank of Corporal from the 11th May, 2006 be and is hereby dismissed.

2. That there be No Order as to Costs.

___________________

Robin N. Mohammed

Judge

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