Patrick Glenn Lake v Public Service Commission

• Jurisdiction: Bermuda
• Judge: Ian RC Kawaley CJ
• Judgment Date: 08 April 2016
• Neutral Citation: [2016] SC Bda 39 Civ
• Docket Number: CIVIL JURISDICTION 2014: No. 300
• Court: Supreme Court (Bermuda)
• Date: 08 April 2016

[2016] SC (Bda) 39 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2014: No. 300

Patrick Glenn Lake

Applicant

and

The Public Service Commission

Respondent

Mr. Mark Diel, Marshall Diel & Myers Limited, for the Applicant

Mr Michael Taylor, Attorney-General's Chambers, for the Respondent

(In Court) 1

Judicial Review — certiorari to quash demotion of public officer-Public Service Commission Regulations-disciplinary proceedings-gross misconduct-inefficiency-elements of offence-alternative appeal remedy-disciplinary penalty imposed in excess of jurisdiction void

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 July 22, 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 January 3, 2014. That decision was appealed by the Applicant to the Public Service Commission (‘PSC’) who affirmed the decision on June 23, 2014 (‘the PSC Decision’).

2 The Applicant, initially acting in person, applied for judicial review of the PSC Decision, on December 9, 2014. On January 21, 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 March 25, 2015, the by now legally represented Applicant sought to challenge the validity of both the “conviction” and the “sentence” on the following principal grounds:

• (1) 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;

• (2) the only offences proved amounted to simple misconduct for which the penalty imposed was inherently unreasonable;

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

4 On March 28, 2016, the day before the rescheduled hearing of the Notice of Motion issued on March 25, 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 July 22, 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 2) 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:

• (1) a series of acts of misconduct or a single act of misconduct; and

• (2) 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 affords the officer an opportunity to respond to the charge;

• • Unless the HOD decides to dismiss the charge, the charge is referred to the HOCS for a hearing;

• • The HOCS can delegate any of his Second Schedule functions to an Assistant Cabinet Secretary.

13 In the Applicant's case, he was served with a statement of the alleged offences on or about August 17, 2012. He then met with the HOD on September 4, 2012. By letter dated November 14, 2012, the charge and supporting materials were sent to the then HOCS by the HOD ‘ for your consideration’. An Adjudicator heard the charge and found it proved on July 22, 2013, the penalty of demotion was imposed by the HOCS by letter dated January 3, 2014. The Public Service Commission (‘PSC’) dismissed the Applicant's appeal against the penalty on June 23, 2014.

14 Although no point was taken on the need for an opinion from the HOCS as a precondition for laying or as an essential element for proving the paragraph 7.4.2 (d) charge before the present proceedings were commenced in December 2014, it is common ground that the requisite opinion was not placed before either:

• (a) the Applicant before the matter was referred to the Adjudicator for hearing (2012);

• (b) the Adjudicator when the charge was substantively heard (2013);

• (c) the PSC for the Applicant's appeal (2014); or

• (d) this Court between the date when the “no opinion” point was first raised (March 25, 2015) and the date of the effective hearing of the present judicial review application (March 29, 2016).

15 Mr Taylor, surprisingly, appeared to suggest in the course of argument that the requisite opinion might well exist. That submission was beside the point. What was crucial for the purposes of the present application was that the relevant opinion had clearly not been relied upon in the disciplinary process which resulted in the charge being “proved”. That meant that in legal terms it was clear...