Lake v Public Service Commission

• Jurisdiction: Bermuda
• Judgment Date: 08 April 2016
• Date: 08 April 2016
• Docket Number: Civil Jurisdiction 2014 No 300
• Court: Supreme Court (Bermuda)

[2016] Bda LR 137

In The Supreme Court of Bermuda

Civil Jurisdiction 2014 No 300

Between:

Patrick Glenn Lake

Applicant

and

Public Service Commission

Respondent

Mr M Diel for the Applicant

Mr M Taylor for the Respondent

The following cases were referred to in the judgment:

Bermuda Telephone Co Ltd v Minister of Communications [1991] Bda LR 23

Stoneham and Fleming v Attorney-General et al [2008] Bda LR 14

Aitkin v Immigration Appeal Tribunal [2015] (1) CILR 27

R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] QB 424

Bermuda Telephone Co Ltd v Telecommunications Commission [1999] Bda LR 30

McLaughlin v Governor of the Cayman Islands [2007] 1 WLR 2839

Application for judicial review — Demotion of public officer — Disciplinary proceedings — Gross misconduct — Inefficiency — Alternative remedies

JUDGMENT of Kawaley CJ

Introductory

1. The Applicant was found guilty of gross misconduct by a person appointed to hear the disciplinary complaint (“the Adjudicator”) based solely on allegations of inefficiency on 22 July 2013. A penalty of demotion subject to finding an appropriate new post within the next three months was provisionally imposed. The final penalty was communicated to the Applicant after the Adjudicator had retired by the Head of the Civil Service (“HOCS”) on 3 January 2014. That decision was appealed by the Applicant to the Public Service Commission (“PSC”) who affirmed the decision on 23 June 2014 (“the PSC Decision”).

2. The Applicant, initially acting in person, applied for judicial review of the PSC Decision, on 9 December 2014. On 21 January 2015, Hellman J granted leave to pursue only one ground of complaint, namely the assertion that the PSC Decision to uphold the penalty was unreasonable. By an Originating Notice of Motion dated 25 March 2015, the by now legally represented Applicant sought to challenge the validity of both the ‘conviction’ and the ‘sentence’ on the following principal grounds:

• i. the offence of gross misconduct was not made out because the relevant charge was not, as was legally required, laid on the basis of an opinion from the HOCS that the acts of inefficiency complained of were so grave as to constitute gross misconduct;

• ii. the only offences proved amounted to simple misconduct for which the penalty imposed was inherently unreasonable;

• iii. the penalty was imposed by the HOCS, not the Adjudicator, in breach of the Applicant's fair hearing rights.

3. The Respondent filed two Affidavits in answer in April 2015 before directions were ordered. The Applicant filed his First Affidavit on 20 March 2015. By a Consent Order dated 3 May 2015, directions were given for the filing of further evidence. The matter was listed for substantive hearing on 1 December 2015. The Respondent filed two further Affidavits in November 2015 and, after obtaining leave from the Court on 30 November 2015, filed a third further Affidavit on 1 December 2015. The 30 November 2015 order also adjourned the hearing to a date to be fixed, again effectively by consent. A fresh hearing was fixed for 29 March 2016.

4. On 28 March 2016, the day before the rescheduled hearing of the Notice of Motion issued on 25 March 2015, the Respondent for the first time objected to the Applicant seeking to challenge the ‘liability’ aspect of the disciplinary offence, or the ‘conviction’, on the grounds that leave to pursue such complaint had not been obtained. Having heard the preliminary objection, I decided to grant leave to the Applicant to pursue all his pleaded grounds, without prejudice to the Respondent's right to contend that no relief should be granted in respect of any otherwise meritorious complaint because he had failed to pursue an alternative remedy, having filed and withdrawn an appeal against the Adjudicator's 22 July 2014 decision on liability.

5. It was ultimately understandable why the Respondent's counsel belatedly raised this technical objection. When the key elements Applicant's central complaint were carefully analysed, Mr Taylor was bound to concede that the merits of this complaint could not be disputed.

The disciplinary scheme

6. The sole gross misconduct charge was based on the following provisions of the Conditions of Employment and Code of Conduct (for the Civil Service) 2001 (“the Code of Conduct”). It is helpful to look at paragraph 7.4.2 (d), the offence with which the Applicant was charged, in the context of the definition of gross misconduct as a whole:

“7.4.2 Gross Misconduct

An officer is guilty of gross misconduct if the officer:

• (a) Assaults another officer or member of the public while on duty.

• (b) Is unfit for duty as a result of being under the influence of alcohol or drugs.

• (c) Acts fraudulently or dishonestly, or is involved in theft or failure to account for Government funds or monies or property belonging to Government.

• (d) Commits a series of acts of misconduct or a single act of misconduct of such gravity that in the opinion of the Head of the Civil Service it warrants being treated as gross misconduct.

• (e) Acts in a manner that is in the opinion of the Head of the Civil Service likely to bring the Civil Service into disrepute.” [Emphasis added]

7. Mr Diel rightly submitted that making out a charge of contravening paragraph 7.4.2 (d) of the Code of Conduct necessarily required proof two essential elements:

• i. a series of acts of misconduct or a single act of misconduct; and

• ii. the opinion of the Head of the Civil Service that the act or acts were of sufficient gravity to warrant being treated as gross misconduct.

8. The scheme of the disciplinary code clearly envisages a clean distinction between simple misconduct and gross misconduct. The Applicant's counsel in this regard also pointed to the wholly separate procedural code for (a) ‘prosecuting’ ordinary misconduct and gross misconduct offences, and (b) punishing offences which have been proved. The procedure is dealt with by the Public Service Commission Regulations (“the Regulations”) while the Code of Conduct prescribes disciplinary penalties.

9. The First Schedule, pursuant to regulation 24(1), governs simple misconduct procedure. The Second Schedule, pursuant to regulation 24(2), governs gross misconduct procedure. The former is, to use Mr Diel's apt moniker, “conciliatory”. The gross misconduct procedure is more formal with fair hearing requirements.

10. The separate penalty regime is reflected in the following provisions of the Code of Conduct:

“7.5.1 Misconduct Penalties

These are imposed by line managers or by Permanent Secretaries or Heads of Department:

• (a) Oral and written warnings.

• (b) Formal warnings conveyed in writing to the officer with a copy placed on the officer's personal file.

• (c) The Head of Department may determine that restitution would be appropriate, and may, with the agreement of the offender direct that the offender make restitution for any loss or damages caused by the offender.

7.5.2 Gross Misconduct Penalties

These are imposed only by the Head of the Civil Service:

• (a) Suspension with partial loss of pay.

• (b) Suspension with full loss of pay.

• (c) Surcharge levied to compensate for any loss incurred by Government as specified in Financial Instructions.

• (d) Reduction in rank, demotion to an office attracting a lesser salary.

• (e) Dismissal.” [Emphasis added]

11. As the Applicant had received a penalty only applicable for a gross misconduct offence, whether or not a gross misconduct offence had been properly made out against him was of substantive consequence. It also seems self-evident that where a charge under paragraph 7.4.2(d) (or (e)) is involved, the HOCS opinion must be either:

• (a) a precondition for the charge being ‘laid’; or

• (b) an essential element of the material relied upon in the disciplinary hearing to support the relevant disciplinary charge.

The disciplinary proceedings and the validity of the decision that the gross misconduct charge had been proved

12. The Second Schedule to the Regulations provides for the following steps in relation to an offence of gross misconduct:

• • The Head of Department (“HOD”) gives a statement of offence to the officer charged;

• • The HOD...