Writing about issues of public law has taught me the extent of the knowledge of the subject that has been gained by those who have been the object of what they perceive to be unfair and oppressive executive action. I have received a considerable amount of information concerning persons who are still hurting from their perception that they have not been treated fairly.
One such piece of information relates to the case of Sandiford et al vs The Public Service Commission (PSC) and the Attorney General of Barbados (1998), which was referenced by an officer who was not involved in that case.
In Sandiford et al vs the PSC and the AG of Barbados (1998) suit #2073 of 1996 of the High Court of Barbados, four public officers employed at the Queen Elizabeth Hospital sought various remedies under the Administrative Justice Act with respect to the decision by the Government to interdict them from the public service, send them on special leave and reduce their salaries while on leave.
In that case one of the concerns was the management style of the Hospital Director which it was said “may have led to the creation of factions within the organisation . . . .”
The four public officers were sent on special leave initially for a period of three months from March 1, 1996, to May 31, 1996. This leave was extended from the period June 1, 1996, to June 30, 1996 and July 1, 1996, to September 30, 1996.
The applicants were then interdicted with effect from October 1, 1996, from performing their duties. The letter written to each of the applicants read in part:
“Sir: I am directed to inform you that the Governor General, acting in accordance with the advice of the PSC, has interdicted you from performance of your duties . . . . , pending the outcome of an investigation into disciplinary charges brought against you.”
Waterman J. (as he then was) quoted extensively from the submissions of Mr Maurice King, QC, (as he then was) in arriving at his decision.
Section 5.5 of the General Orders reads:
“The Chief Personnel Officer (CPO) may direct an officer or employee to take vacation or special leave whenever in his opinion the interests of the service so require”.
Section 5.27 of the General Orders also speaks to the powers of the Chief Personnel Officer to grant special leave of absence on full pay in the circumstances outlined therein.
Mr King, among other things, submitted:
“It is clear that the decision to send the applicants on special leave, those circumstances being allegations of mismanagement and therefore charges of misconduct against public officers in the public service, that decision to send them on special leave is in pith and substance the exercise of a power to suspend or to interdict, and therefore the exercise of a power which is concomitant with, or incidental to, the power to exercise disciplinary control over public officers.
“Implied in the power to discipline is the power to carry out an investigation, the power to interdict or to suspend, or to sent on special leave. So that here you have the CPO under the General Orders of the public service exercising an authority to send public officers on special leave, to suspend them, to interdict them. Now the conditions and procedures relating to the discipline and for interdicting public officers in the public service are set out in Part V of the regulations. These regulations set out clearly and precisely the procedures to be followed when charges or misconduct are made against public officers.
“When therefore legislation specifically sets out the procedures that are required to be followed in relation to discipline and consequentially in relation to the ancillary and incidental powers of suspension, interdiction, or special leave, these are all different names for the same action, the procedures prescribed in the regulations and no other must be followed until the regulations are altered by subsequent legislation.
“In the final analysis, Section 5.5 of the General Orders cannot have any place in the context of legislation specifically dealing with the issue of the discipline of public officers.”
Waterman J. essentially endorsed the submissions of Mr King; he cited the well known provisions of section 94(1) of the Constitution, which reposes the power to exercise disciplinary control over persons holding public offices in the Governor General acting on the advice of the Public Service Commission and pointed out that the regulations made under the Service Commissions Act Cap. 34 provide that the power vested in the Commission by Section 94 with respect to the exercise of disciplinary control over public officers shall be exercised by the Commission.
Said Waterman J: “The CPO has no power under the law as regards disciplinary matters. He clearly usurped the powers of the Governor General and the PSC by sending the applicants on special leave in what is in fact and in law a disciplinary matter.”
So concerned about the abuse of power by the CPO was Waterman J that he issued this injunction:
“From this day forward the Court respectfully suggests that the CPO must be prevented from running amok in disciplinary matters by sending public officers on special leave under the General Orders. He is entirely ‘without jurisdiction’ in disciplinary matters.”
Judge Waterman granted the orders sought by the applicants in the case and awarded them damages for the public humiliation, embarrassment and distress that they suffered.
• Cecil McCarthy is a Queen’s Counsel.
