Marcus Uddin v The Commissioner of Police
| Jurisdiction | Bermuda |
| Judge | Hargun CJ |
| Judgment Date | 06 November 2023 |
| Court | Supreme Court (Bermuda) |
| Year | 2023 |
| Docket Number | CIVIL JURISDICTION 2021 No. 229 |
In the Matter of An Application for Judicial Review
And the Matter of Marcus Uddin, Probationary Officer
[2023] SC (Bda) 84 Civ.
The Hon. Chief Justice Hargun
CIVIL JURISDICTION 2021 No. 229
In The Supreme Court of Bermuda
Miss Victoria Greening of Resolution Chambers Ltd. for the Applicant
Mr Brian Myrie, Attorney General's Chambers for the Respondent
As noted in the Judicial Review Judgement dated 23 March 2023 (the “ JR Judgment”) Mr Marcus Uddin (“ the Applicant”) commenced employment with the Bermuda Police Service (“ BPS”) on 10 September 2018 with a probationary period of three years. As a probationary member of the BPS, the Applicant was subject to the Police Act 1974 (“ the Act”) and the Police (Conditions of Service) Order 2002 (“ COSO”).
Section 9 of the Act provides that:
“ Discharge from the Service
9. Without prejudice to the Public Service Superannuation Act 1981 [title 9 item 31] and the powers of the appropriate authority to remove or exercise disciplinary control over members of the Service in accordance with the Constitution and any regulations made thereunder, a member of the Service may be discharged from the Service by the appropriate authority if the appropriate authority is of the opinion that such discharge is necessary in the public interest.”
Section 3.1 of the COSO provides that:
“ 3. DISCHARGE
3.1 A member may be discharged at any time in accordance with existing legislation, for example for the following reasons?
…
(d) if during the course of, or at the end of the probationary period, the Commissioner of Police considers that he is unlikely to become an efficient member”
Clause 4 of the Applicant's Employment Contract provided that:
“ 4. PROBATION PERIOD
4.1 Your appointment is subject to a probation period as set out in Schedule 1. Your performance will be reviewed with a formal report submitted to the COP or the COP's delegate as necessary. Subject to satisfactory performance and conduct, you will be confirmed in post at the end of probation period.
4.2 You may decide to terminate this Contract during the probation period immediately in writing.
Clause 1.1 of the Applicant's Employment Contract provided that:
“This Contract shall be effective from the Contract start date as set out in the Schedule 1 and shall continue (subject to any other termination provisions set out in this Contract) until terminated by either party giving the other not less than the written notice set out in Schedule. Your employment under the terms and condition of this Contract is the “Appointment”.”
Clause 18 of the Applicant's Employment Contract deals with Termination of Service and provided that:
“ 18. TERMINATION OF SERVICE
18.1 Notwithstanding clause 1.1, the BPS may, subject to the terms and conditions of this Contract and the Policies, terminate the Appointment at any time and with immediate effect by notifying you that the BPS is exercising its right under this clause and that it will make a payment in lieu within 60 days, with the exception of pension payments.”
Schedule 1 to the Applicant's Employment Contract required notice to be given by the BPS and the Applicant in order to terminate the contract of employment and it provided that:
“ Contract Termination Notice Period:
Employee provides 1-month prior written notice
BPS provides 3 months prior written notice”
In the JR Judgment the Court concluded at [25] that the Respondent did not act fairly in discharging the Applicant on 27 July 2021. The performance deficiencies which were noted in the correspondence from the Respondent had already been noted by the Applicant's supervisors and at the instructions of Superintendent Astwood, PS Jean Pierre had agreed with the Applicant that these performance issues would be the subject of a three month informal Management Action Plan ending on 27 August 2021. At the end of the first monthly meeting on 27 June 2021 the Applicant was told by PS Jean Pierre that his performance was improving and he was “ on track”. In the circumstances, the duty of fairness demanded that the Applicant's employment would not be terminated on the same grounds which formed the basis of the informal Management Action Plan, until its expiry on 27 August 2021.
In coming to this conclusion, as noted in [26], the Court did not express any view as to the substantive grounds which formed the basis of the Respondent's decision. The Court's conclusion that the Respondent's decision is unfair and therefore unlawful related to the procedural requirement that such a decision, in fairness to the Applicant, should not have been made during the period allowed for the implementation of the informal Management Action Plan. The Court expressly noted that it would have been open to the Respondent to take this action after the conclusion of the Management Action Plan on 27 August 2021, if he continued to take the view that the Applicant was “ unlikely to become an efficient member” of the BPS.
In her written submissions, Miss Greening for the Applicant contends that the Applicant was unfairly dismissed and in the first instance, seeks the relief of reinstatement. Miss Greening says that case law demonstrates that the Court has discretion as to whether or not to order reinstatement and in this case the discretion should be exercised in the Applicant's favour and reinstatement should be ordered. She says that there is nothing to indicate that the Applicant would not have qualified to become an efficient full-time officer at the completion of his probation, as indicated in the meeting notes of the informal action plan. In his Fourth Affidavit the Applicant reiterates that he is seeking reinstatement and in the event that the Court does not reinstate him, in the alternative, he is applying for reasonable damages for unlawful dismissal.
In considering the claim for reinstatement and/or damages the Court bears in mind that public law remedies are, for the most part, discretionary and in exercising that discretion the Court is bound to take into account the grounds pertaining to the facts of the particular case.
In relation to the claim for reinstatement it is to be noted that during the inter-partes hearing for leave to issue the Judicial Review proceedings, the Applicant's claim for reinstatement was considered and refused by Subair-Williams J. In other words, the Applicant was refused leave to pursue the remedy of reinstatement by Subair-Williams J and the Applicant elected not to appeal that decision. Accordingly, this fact alone would militate strongly against the grant of the remedy of reinstatement.
The issue of whether it is appropriate to grant the remedy of reinstatement in similar circumstances as the present case was considered by the House of Lords in Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141. In that case the respondent was a probationer constable undergoing training with a police force. He received good reports on his progress from his instructors who stated that there was no reason to doubt his becoming a reliable and competent constable. However, during his probationary period, certain rumours started concerning his private life. The Chief Constable believed them to be true and decided to dispense with the services of the respondent. The Chief Constable did not disclose the facts upon which he based his decision nor offer the respondent an opportunity to offer any explanation, but he informed him that if he did not resign, he would be discharged. The respondent resigned and began proceedings against the Chief Constable seeking an order of certiorari to quash the Chief Constable's decision that the respondent should resign or be discharged. The House of Lords held that the Chief Constable's decision to force the resignation of the respondent was vitiated by his erroneous assumption that he had an absolute discretion and by his total failure to observe the rules of natural justice in not giving the respondent the opportunity to refute the allegations on which the Chief Constable relied.
On the question of the appropriate remedy, the House of Lords held that the respondent was entitled at least for a declaration that the Chief Constable had acted unlawfully and in breach of his duty under the relevant regulations. However, in relation to the claim for reinstatement, whilst that was the only satisfactory remedy in consequence of the breach of duty by the Chief Constable, to make such an order would be impractical and would border on usurpation of the powers of the Chief Constable by the court and therefore the court declined to grant the relief. Lord Brightman held at 156:
“I feel that the choice of remedy is a difficult one. It is a matter of discretion. From the point of view of the respondent who has been wronged in a matter so vital to his life, in order of mandamus is the only satisfactory remedy. I have been much tempted to suggest to your Lordships that it would be in the circumstances be a remedy proper to be granted. But it is unusual, in a case such as the present, for the court to make an order of mandamus, and I think that in practice it might border on usurpation of the powers of the Chief Constable, which is to be avoided. With some reluctance and hesitation, I feel that the respondent will have to content himself with the less satisfactory declaration that I have outlined.”
Lord Bridge also referred to the potential difficulties in ordering reinstatement. At page 148 Lord Bridge held:
“… I appreciate the weight of the objections to it. Great practical problems would arise in relation to his training and perhaps other matters from the fact that the service has been interrupted for...
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