Uddin v Commissioner of Polcie

• Jurisdiction: Bermuda
• Judgment Date: 23 March 2023
• Court: Supreme Court (Bermuda)
• Docket Number: CIvil Jurisdiction 20 No 229

Between:

Marcus Uddin

Applicant

and

Commissioner of Police

Respondent

[2023] Bda LR 21

CIvil Jurisdiction 20 No 229

In The Supreme Court of Bermuda

Judicial review — Dismissal during probationary period — Fairness

The following cases were referred to in the judgment:

Gorhams Ltd v Robinson [2022] Bda LR 50

Swan v Onions, Bouchard & McCulloch [1999] Bda LR 44

MC v Chief Constable of Strathclyde Police [2013] CSOH 65

Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141

R (on the application of V) v Chief Constable of North Yorkshire Police [2009] EWHC 1870

V Greening for the Applicant

B Myrie for the Respondent

JUDGMENT of Hargun CJ

Introduction

1. 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”).

2. Section 9 of the Act provides that:

“Discharge from the Service

9. Without prejudice to the Public Service Superannuation Act 1981 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.”

3. 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”

4. 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.”

5. The Applicant's employment contract states that he has 3 years' probation period from 10 September 2018. The Applicant's probationary period formally ended on 9 September 2021. The Applicant was discharged from the BPS by the Commissioner of Police (“the Respondent”) on 31 August 2021.

6. On 3 August 2021 filed his application for leave to apply for judicial review and in support of that application the Applicant relied upon the following facts and circumstances:

• i. The Applicant commenced his employment as a Police Constable with the BPS and on 27 May 2021 he was placed on an “Informal Action Plan” (“Action Plan”) by his supervisor Police Sergeant Jean Pierre to improve his performance in relation to certain deficiencies in his performance.

• ii. As part of the Action Plan it was suggested by PS Jean Pierre and agreed by the Applicant that there would be monthly meetings held on 27 June 2021, 27 July 2021 and 27 August 2021, to monitor the Applicant's improvement in the areas identified.

• iii. On 19 May 2021 Superintendent Astwood, referring to the deficiencies in the Applicant's performance, stated that: “This matter has been assessed by OIC PSD [Performance Standards Department] and is deemed to be performance matter, to be dealt with via Management Action.”

• iv. During the Action Plan period, the Applicant received a letter from the Respondent on 17 June 2021 (which was dated 9 June 2021) on the identical allegations being dealt with by the Action Plan. The latter advised the Applicant that he had 72 hours to reply to the Respondent.

• v. On 17 June 2021, the Applicant replied to the Respondent by way of two emails, setting out the basis of the judicial review application. The Applicant stated that;

  “8… I was put on an informal action plan on Thursday, 27 May 2021 by PS Jn Pierre to improve my performance in relation to the allegations listed in your “Potential Discharge Letter”. As part of the action plan PS Jn Pierre would have monthly meetings with me until 27 August 2021 to correctly set performance. PS Jn Pierre sent a follow-up email to me and others stating that he would have a documented monthly meeting with me with the first paint 27 June 2021, the second being 27 July 2021 and the last meeting with the again 27th of August 2021…

  9. This instruction came from Supt. Astwood on 19 May 2021, where she reported the following: “This matter has been assessed by OIC PSD and is deemed to be a performance matter, to be dealt with via Management Action.” As such it would seem prejudicial and extremely unfair to turnaround now and use the same information that I received management action for and try and discharged me from the service.”

• vi. On 1 July 2021 the Applicant's attorney responded formally to the Respondent on the Applicant's behalf contending that given the Applicant has been placed on an informal action plan by PS Jn Pierre it was unfair and unlawful to use the same information to discharge the Applicant from the BPS.

• vii. On 6 July 2021, the Attorney General's Chambers responded on behalf of the Respondent to say that the Applicant's attorney's reply was not satisfactory and that the Respondent was giving the Applicant a further seven after days to reply to the substantive allegations.

• viii. On 27 July 2021, which was the date scheduled for the second informal action plan meeting, the Applicant received a letter from the Respondent dismissing him from the BPS. The latter instructed the Applicant to attend the Hamilton Police Station following day, to return all police property...