Dawson v Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 19 July 2013
• Date: 19 July 2013
• Docket Number: Civil Jurisdiction 2012 No 397
• Court: Supreme Court (Bermuda)

[2013] Bda LR 57

In The Supreme Court of Bermuda

Civil Jurisdiction 2012 No 397

Between:

In the matter of Order 53 of the Rules of the Supreme Court of Bermuda

And in the matter of a Decision of the Commissioner of Police made on the 23rd June 2012 to discipline the Applicant and/or terminate the Applicant's office

In the matter of the Police Act 1974

And in the matter of the Police (Disciplinary) Orders 1975

And in the matter of Special Instructions ‘Code of Conduct’ 2010

And in the matter of the Bermuda Police Association Regulations

Cebelle Dawson

Applicant

and

The Commissioner of Police

and

Bermuda Police Association

Respondents

Mr L Scott for the Applicant

Ms S Dill for the Respondents

The following cases were referred to in the judgment:

Pitcher v Minister of CorrectionsBDLR [2011] Bda LR 68

R v East Berkshire Authority ex parte WalshELR [1985] 1 QB 152

Termination of employment — Preliminary issue — Whether acceptance of Applicant's resignation was unlawful — Procedural unfairness

RULING of Kawaley CJ

Introductory

1. The Applicant seeks judicial review of the decision of the 1^st 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 2^nd Respondent, wh ose 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 1^st 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:

• i. the Applicant became a Police Officer in 2008 and had no material...