Jodie Blackstock of Garden Court Chambers acted for the appellant, led by Anand Ramlogan SC, instructed by Freedom Law Chambers, Trinidad.
The Appellant, Siewnarine Ramsaran, was acting Assistant Chief Fire Officer of the Fire Service of Trinidad and Tobago, having been in the fire service since 1979. He applied for the post of acting Deputy Chief Fire Officer when the post was advertised in May 2019. At the time, Mr Ramsaran was advised that he did not hold an essential training course to be recommended for the post.
He duly completed the course and complained to the Chief Fire Officer (“CFO”) that he had heard nothing further about the acting position. He did not receive a formal reply despite repeatedly seeking updates.
Judicial Review
Mr Ramsaran sought judicial review, having heard no response to his application for the post. Through the litigation, it transpired that the role had already been filled in March 2019, and thereafter in October 2019, without the position being advertised. In April 2020, the Public Service Commission (“the Commission”) held a meeting to consider appointment to the post, despite the fact that the post had in fact been filled since March 2019. In that meeting, they were advised that Mr Ramsaran could not be considered because he did not have six years’ experience in the post of Assistant Chief Fire Officer.
Mr Ramsaran won his claim in the High Court, but lost in the Court of Appeal. The decisions focussed on whether he held the requisite six years’ experience specified in a job description.
Privy Council
The Judicial Committee of the Privy Council reviewed the legislation and agreed with Mr Ramsaran’s case. Lord Sales, giving the unanimous decision of the Board, held that (1) Mr Ramsaran had been an eligible officer at all times. Requirements set out in a job description set by the Fire Service could not impose additional criteria to the statutory scheme, for which appointments are made by the Commission, nor could the recommendations of the CFO preclude the Commission from considering all eligible officers.
(2) Moreover, in this case, the Job Description did not specify that any criteria were essential rather than desirable among a list of various qualities. In any event, the six-year period of experience that was relied upon below to preclude the appointment, was described in the job description to be of “senior managerial/administrative experience” for which there was no specified starting point and disagreement between the Respondent’s witnesses as to the post from which it could commence.
This made the criterion no more than one of general consideration rather than an absolute requirement. The CFO and Commission were obliged to act fairly in the process of appointments and promotions, and in particular to give fair notice of what factors will bear on a decision, which they had not done.
(3) The statutory scheme requires that the CFO notify all eligible officers of when an acting appointment falls to be made. They must allow officers to make representations and pass those representations to the Commission. Fairness requires that when notice is given, it explains the opportunity to make representations that will be taken into account, the time frame in which they may be made, and a reasonable indication of the factors, which will be treated as relevant to the appointment so that any applicant has a fair opportunity to make their representations in an effective way. The CFO must consider those representations in making his recommendations for the post to the Commission, which must be based on the criteria prescribed in the regulations.
The Board found that there had been a “wholesale failure” to operate the scheme in this way. No notice was given in March 2019 when the appointment fell to be made. In May, notice was given with the job description, but did not explain the opportunity to make representations, nor how they would be used. The Commission was not even informed of Mr Ramsaran’s application at that time. When he made representations in December, these were not passed on to the Commission.
Despite the consideration of the post by the Commission in April 2020, there was no further notice of the acting appointment given to eligible officers. In considering the appointment, it was unfair of the CFO and Commission to rely on the training criteria or six years’ experience listed in the job description as mandatory requirements and so precluded Mr Ramsaran from consideration.
(4) The Constitution of Trinidad and Tobago sets out certain fundamental rights, including protection of the law. The Court held that the rights set out in the statutory scheme to ensure a fair appointment process and protect the Appellant’s interests were completely ineffectual in this case and failed to protect his rights.
Mr Ramsaran was unaware of the nature or extent of the breach until he commenced proceedings. By the time he brought the action, there was no possibility of him being considered for appointment and no prompt and effective remedy was available to him. His right to protection of the law was therefore violated.
Implications
The case is significant for the proper operation of appointments processes by independent public service commissions set up pursuant to constitutions of commonwealth nations, where statutory schemes should dictate the process rather than ad hoc job descriptions and specifications.
