Dawson v Commissioner of Police and Bermuda Police Association

JurisdictionBermuda
JudgeKawaley, C.J.
Judgment Date17 July 2013
CourtSupreme Court (Bermuda)
Docket Number36 of 2012
Date17 July 2013

Supreme Court

Kawaley, C.J.

36 of 2012

Dawson
and
Commissioner of Police and Bermuda Police Association
Appearances:

Mr. Lawrence Scott, Scott & Scott, for the applicant

Ms. Shakira Dill, Attorney-General's Chambers, for the respondents

Judicial Review - Decision to terminate applicant's employment — Procedural impropriety — Whether finding that purported resignation was of no legal effect was justified.

INTRODUCTORY
Kawaley, C.J.
1

The applicant seeks judicial review of the decision of the 1st respondent to terminate her employment of approximately 5 years as a member of the Bermuda Police Service on or about June 23, 2013. She alleges that she was pressured to hand in her resignation on that date when she was first accused of contravening the Code of Conduct by having an intimate relationship with a member of the criminal fraternity.

2

The applicant's complaint against the 2nd respondent, whose President was in attendance at the relevant meeting but took no part in it, was effectively struck-out on February 7, 2013 on the grounds that the Bermuda Police Association (“BPA”) has no statutory power to involve itself with disciplinary proceedings.

3

There is a factual dispute as to precisely what took place at the meeting between the Assistant Commissioner and a Superintendent which culminated in the applicant tendering her resignation. The extent of the dispute only became apparent at the effective hearing of the present application and it was clear that leave to cross-examine the applicant and the two senior Police Officers would have to be granted to resolve those disputes.

4

Of the Court's own motion, I decided to determine as a preliminary issue whether, based on certain agreed facts, the acceptance of the applicant's resignation was unlawful in the sense that it contravened the special statutory protections for the employment of Police Officers found in, inter alia, the Police (Discipline) Orders, 1975.

5

I took this case management step for two reasons. Firstly, I did not want the costs of preparing for a hearing which could not be concluded in the one day originally assigned to be thrown away. Secondly, I hoped that the need for the controversial factual issues to be resolved might be obviated although I fully appreciated that the possibility of this matters being settled as a result was somewhat speculative. This is particularly because the form of relief to be granted to the applicant even if she was successful in establishing procedural impropriety is likely to depend on whether or not the Court finds that she did or did not freely admit the misconduct alleged in the course of the crucial meeting.

6

Ms. Dill suggested that the true nature of the applicant's case was not apparent until her counsel's oral submissions. However, it was or ought to have been obvious from the primary relief sought in the Notice of Application as read with the applicant's First Affidavit, that the substance of her complaint was that her purported resignation was procured by procedural unfairness and should accordingly be declared to have been legally ineffective. To the extent that the termination of her employment is set aside and the 1st respondent elects to lay disciplinary charges against her, she also seeks an order of mandamus compelling him to comply with the statutory disciplinary code.

THE AGREED FACTS
7

The following facts were substantially agreed:

  • (1) the applicant became a Police Officer in 2008 and had no material blemishes in her disciplinary record;

  • (2) on or about June 23, 2013, the applicant was summoned to a meeting with the Assistant Commissioner and a Superintendent at which she was told for the first time that it was believed based on credible evidence that she was having an intimate relationship with a senior gang leader;

  • (3) although the applicant initially denied this allegation, at the end of the meeting she tendered her resignation;

  • (4) before tendering her resignation, the applicant was not offered the opportunity to seek advice;

  • (5) the allegation, if true, was potentially serious enough to justify her dismissal (whether following a disciplinary hearing or under section 9 of the Police Act, 1974 in the public interest). (Assuming the undertaking only to use section 9 for ill health, which is still seemingly set out in the Schedule to the Police (Conditions of Service) Order 2002, has now lapsed.)

THE STATUTORY FRAMEWORK
8

I find that the following provisions of the Police (Disciplinary) Orders 1975 were engaged when the applicant was asked to attend a meeting at which she was accused of conduct which, if proved, would likely result in her dismissal from the Bermuda Police Service:

“Investigation of charges

3 (1) Whenever a Divisional Officer receives a report, complaint or allegation as to the conduct of a police officer in his Division which tends to disclose the commission of an offence against discipline, he shall appoint an Investigating Officer of the rank of Sergeant or above to investigate and report to him upon the facts.

  • (2) The Investigating Officer appointed in any particular case shall not be of lesser rank or seniority than the police officer in respect of whom the report, complaint or allegation has been made.

  • (3) The Investigating Officer shall, as soon as practicable, inform the police officer concerned of the nature of the allegation under investigation by written notice in a form approved for use by the Commissioner.

  • (4) The police officer concerned shall within 24 hours inform the Investigating Officer in writing whether he admits or denies the allegation and may make a statement in writing in reply to it and may state the names and addresses of any witnesses to relevant facts whose presence he wishes secured at any subsequent hearing.”

9

Paragraph 3(3)–(4) of the Orders were to my mind the crucial statutory provisions governing notification of an allegation under...

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