Terry Lynn Thompson v The Public Service Commission
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams J |
| Judgment Date | 17 November 2021 |
| Docket Number | CIVIL JURISDICTION 2021 No. 200 |
| Year | 2021 |
| Court | Supreme Court (Bermuda) |
[2021] SC (Bda) 91 Civ
In The Supreme Court of Bermuda
Shade Subair Williams J
CIVIL JURISDICTION 2021 No. 200
and
and
Counsel for the Applicants: Mr. Mark Diel and Mr. Adam Richards ( Marshall Diel & Meyers Limited)
Counsel for the Public Service Commission: Mr. Richard Horseman ( Wakefield Quin Limited)
Counsel for H.E. The Governor and the Attorney General: Mr. Brian Myrie (Crown Counsel)
Application for Judicial Review against Decision not to appoint Applicant as the Director of Parks— Construction of Section 82 of the Bermuda Constitution Order 1968 — Whether the decision of the PSC to abort the recruitment process was ultra vires and void — Public Service Commission Regulations 2001 — Delegation ofpowers vested in H.E. The Governor of Bermuda to the Public Service Commission — Legitimate Expectation
JUDGMENT of Shade Subair Williams J
This is an application for judicial review which ultimately strikes out against the process employed and/or permitted by the Respondents in refusing to appoint the Applicant, Ms. Terry Lynn Thompson, to the post of Director of Parks (“Director”) for the Department of Parks (the “Department”) under the Government Ministry of Public Works (the “Ministry”). Ms. Thompson is otherwise employed in the Ministry as the Senior Plant Protection Officer.
On 8 and 24 September 2021 Counsel for each party appeared before me, having filed written submissions and affidavit evidence in support of their respective positions. At the close of the hearing, I reserved judgment which I now provide with the reasons below.
Having filed an application for leave to apply for judicial review dated 17 May 2019, the Applicant's Counsel subsequently filed an amended notice (the “Amended Notice”) pursuant to Order 53/5 of the Rules of the Supreme Court (“RSC”) on 12 May 2021. The decisions in respect of which relief is sought are stated in the Amended Notice to be:
“The decision of the Public Service Commission to have the Applicant act in the position of Director of Parks before being substantively appointed to the post, and not to appoint the Applicant substantively to the post.
The decision of the Public Service Commission on or about 26 November 2018 to withdraw its recommendation or decision in relation to the appointment of the Applicant as Director of Parks
The decision of the Permanent Secretary acting in the name of the name of the Minister of Public Works to withdraw the application for the post of Director of Parks to be filled.
The decision of the Public Service Commission to accept that decision.
The decision of the Head of the Civil Service acting in the name of the Minister responsible for the Cabinet Office to join in the above decision of the Permanent Secretary.”
By way of relief, the Applicant seeks the following orders of this Court:
”
-
(i) a declaration that the decisions referred to above are ultra vires, unlawful, void and ineffective;
-
(ii) a declaration that the Public Service Commission had a duty to appoint the Applicant substantively to the post of Director of Parks on or about 10 September 2018 and were therefore required to do so;
-
(iii) an order that the Applicant commence her appointment on or before a date set by this Honourable Court;
-
(iv) an inquiry into damages
-
(v) costs”
The Applicant relied on paragraphs 3.5.1 and 3.5.2(a) of the Government of Bermuda Conditions of Employment and Code of Conduct (the “Government Conditions and Code”) in asserting that acting appointments are only made if the Permanent Secretary (“PS”) or the Head of Department (“HOD”) determines that it is “absolutely necessary” to do so and that the making of such appointments are regarded as a development opportunity for the officer appointed to the acting role.
The Applicant first acted in the vacant post of Director on 1 July 2017 when Mr. Francis Richardson was the substantive PS of the Ministry of Public Works. The Applicant's first acting appointment continued for a six month period 1 during which Mr. Richardson retired and Mr. Chris Farrow became the Acting PS to the Ministry of Public Works. In an affidavit sworn on 15 June 2021 Mr. Farrow (currently the PS to the Ministry of Social Development and Seniors) explained that during his acting appointment the Bermuda Industrial Union (“BIU”) shop stewards met with him on a number of occasions to raise concerns about the Applicant's management style. He said [5]: “Examples included her being disengaged during JCC meetings and spending the time on her phone.” He added [6]: “I did not consider the reports from the BIU to be of such a nature that would lead me to believe that she was unable to manage the department.”
Mr. Farrow explained on his evidence that at the close of the six month period during which the Applicant was acting as the Director, he decided to place Mr. Steven Tucker in the position of Acting Director leaving the Applicant to return to occupy her substantive post. He said [7]:
“…
As Mr. Thompson's acting appointment was coming to an end, and she had been acting for 6 months, I decided to put Mr. Steven Tucker in as Acting Director and let Ms Thompson return to her substantive post. This achieved two goals: 1) I did not have to ask and wait on the PSC approving an extension (owing to the 6 month limit on acting appointments); and 2) it would alleviate the concerns expressed by the BIU. I had worked with Mr. Tucker and he had significant experience in managing BIU staff and had a very good working relationship with the BIU.
Ms Thompson was very upset about her acting appointment not being extended and appeared at my office unannounced with a colleague in tow to confront me about her not being extended in the acting role. She also at the time wrote to the Head of the Public Service demanding a meeting to find out why she was not being extended.
Dr. Binns declined to meet with her and I met with her and advised that her behavior was not appropriate. I offered personal advice to her stating that during your career you may be 1 On a signed application form produced by Mr. Burt, it appears that Mr. Andrew Petit, Director of Environment, acted as the Director of Parks from 10-12 July 2017. On the remaining application forms exhibited to his evidence, it appears that Ms. Thompson was invited to act as DOP from 8-31 July 2017 (in the stead of DOP, Ms. Lisa D. Johnstone) and for the month of August 2017 in addition to the period commencing from 6 September – 31 October 2017 and again from 1 November 2017 to 31 December 2017. These successive acting appointments totals an approximate period of 6 months. (Mr. Burt also produced payroll printouts of payments made during the acting appointments.) asked to step up to assist and you should do so without more and any expectations. It was an opportunity to show your abilities and be seen to be a reliable manager who would step up when needed. Once the acting was over, you should go back with grace and be known as a ‘go to’ person rather than becoming a problem to be avoided in the future. She appeared to take the advice well and that was the end of it…”
Subsequently, an application for Ms. Thompson to act as Director from 1 January 2018 through to 31 March 2018 was submitted for approval. This application was signed by both the Head of the Civil Service and by a representative of the Director of Human Resources. It was not suggested by any party to these proceedings that Ms. Thompson did not act during this period.
On Mr. Craig Burt's evidence, the Applicant again acted as the Director for the month of April 2018, during which period the office of Director was advertised. On 12 April the Applicant submitted her application for appointment. Amongst a total of twenty-two applications submitted, four Bermudian applicants were shortlisted to partake in a two-part recruitment process involving an assessment and an interview.
On 16 May 2018 the Mr. Farrow wrote to Mrs. Carlita O'Brien in her capacity as the Secretary to the Public Service Commission (the “PSC”) recommending the appointment of the Applicant. Mr. Farrow wrote, inter alia:
“Ms. Thompson meets the educational requirements of the posts as she possesses a MSc. In Plant Protection and Pest Management (1989); and a BSc. In Biology (1983). She also meets the experience requirement for the post as she has approximately twenty (20) years relevant senior management experience inclusive of various relevant acting appointments at the Head of the Department level. Her most recent acting appointment being in the Director of Parks post for nine (9) months from July 2017 to April 2018.
Ms Thompson delivered an excellent presentation and she scored the highest of the applicants. She clearly articulated her vision and strategic plan for ensuring that the mandate for the creation, implementation and maintenance of the National Parks Plan would be met.
Ms Thompson also had a very good interview. She provided in-depth responses to all of the interview questions and she was able to demonstrate her knowledge, experience and passion within the field. She also scored the highest for the interview.
…
…
The panel unanimously recommends Ms Thompson for appointment to the Director post.”
It is recorded in the minutes of a 21 May 2018 meeting that the PSC met and considered Mr. Farrow's recommendation. An Interview Panel also convened and unanimously recommended the Applicant for appointment to the exclusion of any other candidate. Notably, Mr. Farrow was sat as a member of this interview panel in addition to...
To continue reading
Request your trial