Williams v Public Service Commission and the Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 11 February 2005
• Date: 11 February 2005
• Docket Number: Civil Jurisdiction 2003 No. 44
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Civil Jurisdiction 2003 No. 44

BETWEEN:

Richard Williams

Applicant

and

The Public Service Commission

1st Respondent

and

The Commissioner of Police

2nd Respondent

Mrs. V. Telford for the Applicant

Mr. W. Bourne for the Respondents

The following cases were referred to in the judgment:

R v St. Lawrence's Hospital Statutory Visitors ex parte PritchardWLR [1953] 1 WLR 1158 20

O'Reilly v MackmanELR [1983] 2 AC 237

Chief Constable of the North Wales Police v EvansWLR [1982] 1 WLR 1155

Judicial review — Employment of foreign police officer — Terms and conditions of contract required — Resignation from former job — Whether 3 year leave of absence sufficient — Condition precedent — Role of public service commission — Public law or private law proceedings

JUDGMENT of Bell, J

Background

These judicial review proceedings arise from the employment of the Applicant (‘Mr. Williams’) with the Bermuda Police Service, and the circumstances of his discharge from it.

At the time of his application for employment, Mr. Williams was a serving police officer with the police service of Trinidad and Tobago. Following an interview in Trinidad, and a conditional offer which was expressly not an offer of employment, an offer of employment was made to Mr. Williams by letter dated 1 May 2003. This letter, which I shall refer to as the Offer Letter, was sent to Mr. Williams by Mrs. Joan Rogers, who is the Human Resource Manager of the Bermuda Police Service. Mrs. Rogers also sent a second letter to Mr. Williams on the same day, in which she advised Mr. Williams that the Commissioner of Police (‘the Commissioner’) had approved his appointment to the Bermuda Police Service as a constable with effect from 1 June 2003. This second letter, which I shall refer to as the Appointment Letter, set out in detail the applicable terms and conditions of service, and Mr. Williams signed this letter to indicate his agreement with those terms and conditions on 11 June 2003.

The Commissioner took the view, according to his affidavit, that the Trinidadian officers interviewed, of whom Mr. Williams was one, had to resign from their home service in order to fulfil a five year contract in Bermuda. Mr. Williams acknowledged, in paragraph 5 of the Statement of Facts filed on the application for leave to issue a summons seeking relief by way of certiorari, that he had initially agreed that he would resign from the Trinidad and Tobago Police Service in order to accept the contract with the Bermuda Police Service. However, he subsequently became concerned that resignation from the Trinidad and Tobago Police Service would cause him difficulties, and instead of resignation sought a five year leave of absence from the Trinidad and Tobago authorities.

Hence the primary issue between the parties is whether the alternative to resignation of a five year leave of absence was open to Mr. Williams. A consequential issue is whether, assuming that to have been an option for Mr. Williams, he did in fact secure such a leave of absence.

The Evidence

In his affidavit sworn on 14 October 2003, Mr. Williams confirmed his personal knowledge of the facts set out in the Statement of Facts. This evidence was met by three affidavits filed on behalf of the Respondents, being affidavits of Mrs. Rogers and Deputy Commissioner Jackson, both sworn on 7 November 2003, and an affidavit sworn by the Commissioner on 19 November 2003. Mr. Williams swore an affidavit in reply to these three affidavits on August 2004.

I will deal with the evidence shortly, but before doing so, I should deal with one matter which affects the extent to which it is necessary for the Court to resolve evidential disputes.

This arises from the fact that Mr. Bourne, counsel for the Respondents, had before trial made two applications in which he sought to cross-examine Mr. Williams at trial. On the first occasion this application was before the Court, Dangor A.P.J. adjourned the application with liberty to re-apply. A further application was made, and the issue argued before Kawaley J. on 6 January 2005. He also adjourned the application, with liberty to apply at the hearing, but noted that during the course of argument before him, Ms. Telford, counsel for Mr. Williams, had indicated that she did not propose to rely on her client's version, disputed by the Respondents, of the oral discussions which had taken place between the parties, either before or after the contract was signed. She no doubt took the view that those earlier discussions did not form part of the contract which was eventually agreed. At the start of her submissions, Ms. Telford confirmed that her case did not turn on the disputed facts, but rather on the legal interpretation of the contract dated 11 June 2003, and two previous documents, which if I understood her correctly were the letter sent by Mrs. Rogers on behalf of the Commissioner to Mr. Williams dated 11 March 2003 and the Offer Letter. In fact, it seems to me that the first of these cannot properly be used as an aid to construction of the contract, since it is not itself part of the terms of the contract. In it, Mrs. Rogers emphasised that the letter was not an offer of employment, and for this reason I do not think it can be of any relevance when the Court comes to look at the terms of Mr. Williams's contract.

Accordingly, given the concession, there is no need to make a finding as to whether Mr. Williams had been informed by Mrs. Rogers that a five year leave of absence would be acceptable in place of his resignation. Quite apart from the reluctance of the Court to resolve evidential disputes in judicial review proceedings, it seems to me that any such discussion would fall into the same category as the letter of 11 March 2003, i.e. part of the pre-contractual negotiations which the Court is not entitled to rely on as an aid to construction of the relevant contract.

Despite Ms. Telford's concession, Mr. Bourne did renew his application to cross-examine Mr. Williams, but he did so extremely late in the day, after Ms. Telford had completed her submissions, and after he himself had all but finished his own. I refused his application, partly on the grounds that I felt it had been made far too late, but also because I did not see how cross-examination of Mr. Williams could possibly advance the Respondents' case or help the Court.

Notwithstanding the concession, Ms. Telford referred me to and laid emphasis on what the Commissioner had had to say in paragraph 5 of his affidavit. This paragraph dealt in general terms with the minimum requirement which the Bermuda Police Service sought to apply in securing the services of any overseas officer. The Commissioner referred to the alternative to resignation of ‘a five year career break or similar arrangement.’ Clearly, a five year leave of absence would constitute such an arrangement. The Commissioner commented that he was aware that the criteria for such career breaks varied from one police jurisdiction to another, and that some jurisdictions might not provide for career breaks at all. His specific evidence in regard to the hiring of officers from the Trinidad and Tobago Police Service such as Mr. Williams was that he had agreed with the Commissioner of that service that only officers who had resigned from the service could be eligible to secure a five year contract with the Bermuda Police Service. He advised that the Trinidadian officers who had been interviewed had been informed that they would need to resign from their home service before taking up an appointment to the Bermuda Police Service, and he recalled that Mr. Williams had asked this very question at the interview. Mr. Williams had of course accepted at that stage of matters that he would need to resign from the Trinidad and Tobago Police Force, in order to accept the contract with the Bermuda Police Service.

Whatever the true contractual position was at this time, there is no doubt but that Mr. Williams, in the belief that his obligations would be met by securing a five year leave of absence from his home service, sought to secure this. Prior to his departure from Trinidad and Tobago, he caused a fax to be sent to Mrs. Rogers in the form of a letter from the Trinidad and Tobago Ministry of National Security dated 27 May 2003. This letter indicated that approval for a three year leave of absence had been granted, and that application could be made in the future for a further two year leave of absence.

Mrs. Rogers, maintaining the Bermuda Police position that nothing less than resignation satisfied Mr. Williams' contractual obligations, continued to press for proof of his resignation, although paragraph 25 of her affidavit suggests a recognition on her...