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Judge found Beryl Isaac acted illegally

Beryl Isaacs – did not cut a good picture in the case

Former Cabinet Secretary and current Head of the Public Service Commission (PSC), Beryl Isaac was taken to task in a ruling from a high court judge in a case brought by a former Acting Permanent Secretary, Veronica Charles who was reverted to her lower post in the service after she made allegations of “ghost payments” in the ministry of Social Services headed by Delma Thomas.

Female high court judge Agnes Actie found that Isaac issued instructions to Charles that she was not entitled to do.

The judge said: “The decisions of Ms Beryl Isaac, the then Secretary to the Cabinet to: (1) discuss with the Claimant about her performance as an acting Permanent Secretary in the Ministry of Social Development; (2) inform, direct and/or advise the Claimant that her acting appointment as Permanent Secretary in the Ministry of Social Development will be terminated and she will be reverted to her substantive post of Director in the Ministry of Social Development; (3) direct the Claimant to proceed on administrative leave on 29th October 2019; (4) request that the Claimant prepare a handover brief for her successor as Permanent Secretary; and (5) direct the Claimant to report for duty to the post of Institutional Strengthening Specialist in the Ministry of Climate Resilience, The Environment, Forestry, Fisheries and Disaster Management from 11th November 2019 were, in each instance, ultra vires and contrary to sections 84(1) and 85(2) of the Constitution of Grenada and therefore unconstitutional, null and void, and of no effect in law”.

Charles was represented in the case by former Finance Minister Nazim Burke who is a co-founder of the law firm Lex Fidelis.

Following is part 1 of Justice Actie judgement:-

JUDGMENT
[1] ACTIE, J.: This claim arises out of an originating motion brought by the claimant, Ms. Veronica Charles, over the termination of her acting appointment in the office of Permanent Secretary in the Ministry of Social Development, Housing and Community Empowerment (“Ministry of Social Development”) and the reversion to her substantive office of Director of Social Development in the said Ministry. Ms. Charles also challenges the decision to place her on administrative leave and her subsequent transfer to the office of Institutional Strengthening Specialist in the Ministry of Climate Resilience, the Environment, Forestry, Fisheries and Disaster Management (“Ministry of Climate Resilience”).

Background
[2] On 13th July 2020, Ms. Charles filed an originating motion against the defendants for the following relief:

(1) A Declaration that the decisions of the first defendant to:

(a) terminate the acting appointment of the claimant as Permanent Secretary in the Ministry of Social Development on 22nd October 2019;

(b) send the claimant on forced leave on 29th October 2019; and

(c) purportedly transfer the claimant from the office of Permanent Secretary (acting) in the Ministry of Social Development to the office of Institutional Strengthening Specialist in the Ministry of Climate Resilience, were, in each instance, ultra vires and contrary to section 85(2) of the Constitution of Grenada and therefore unconstitutional, null and void, and of no effect in law.

(2) A declaration that when Her Excellency, the Governor-General, acting in accordance with the advice of the Public Service Commission (PSC) by letter dated 18th May 2020 purported to terminate the acting appointment of the claimant in the office of Permanent Secretary (acting) in the Ministry of Social Development with effect from 31st October 2019, and reverted the claimant to her substantive office of Director of Social Development in the Ministry of Social Development with effect from 31st October 2019;

Her Excellency, the Governor-General acted irrationally and/or unreasonably and/or arbitrarily and/or surrendered and/or abdicated the discretion vested in her by tile Constitution of Grenada, each of which circumstance rendered the purported termination and reversion a contravention of section 85(2) of the Constitution of Grenada and therefore unconstitutional, null and void, and of no effect in law.

(3) A declaration that the decision of the third defendant to pass over the claimant for promotion to the office of Permanent Secretary in the Ministry of Social Development, without any adequate reasons being given to her for so doing, was improperly motivated, unfair, irrational and in breach of her legitimate expectation and contrary to regulation 19 of the Public Service Commission Regulations.

(4) A declaration that the decision of the third defendant to pass over the claimant for promotion to the office of Permanent Secretary in the Ministry of Social Development, without first giving her an indication as to why she is being passed over for promotion and an opportunity to make representation and/or be heard in that regard is in breach of natural justice and the claimant’s constitutional rights to due process and protection of the law guaranteed by section 8(8) of the Constitution of Grenada Chapter 128 A of the Continuous Revised Edition of the Laws of Grenada, and is therefore unconstitutional.

(5) A declaration that when the third defendant by letter dated 18th May 2020 purporting to grant to the claimant administrative leave from 31st October 2019 to 8th November 2019, it abdicated its responsibility under section 84( 1) of the Constitution of Grenada Chapter 128A of the Continuous Revised Edition of the Laws of Grenada, and was following the dictates of first defendant, the Minister of Social Development, the Cabinet of Ministers and/or some body or committee other than itself in coming to the decision to grant such leave to the claimant and is therefore unconstitutional, null and void, and of no effect in law.

(6) A declaration that the decision of the third defendant by letter dated 18th May 2020 purporting to transfer the claimant definitively to the office of Institutional Strengthening Specialist (Grade K) Ministry of Climate Resilience effective from 11th November 2019, it abdicated its responsibility under sections 83(12) and 84(1) of the Constitution of Grenada, Chapter 128A of the Continuous Revised Edition of the Laws of Grenada, and was following the dictates of the first defendant, the Minister of Social Development, the Cabinet of Ministers and/or some body or committee other itself in coming to the decision to transfer the claimant and is therefore unconstitutional, null and void, and of no effect in law.

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(7) A declaration that the office of Institutional Strengthening Specialist, Ministry of Climate Resilience is not an equivalent post in the public service of Grenada to which the Claimant may be transferred pursuant to section 84(1) of the Constitution as it is not an established post in the public service of Grenada in that no budgetary appropriation or allocation is made for the said office in the annual Estimates of Revenue and Expenditure for Grenada for the fiscal year 2020 and as such the claimant has been constructively dismissed or alternatively required to retire from the public service of Grenada as at 11th November 2019.

(8) An order pursuant to section 101(3) of the Constitution of Grenada that the claimant, having been constructively dismissed or required to retire from the public service is to be paid all of her pension and retiring benefits as if she had atta1ned the compulsory retirement age.

(9) Damages, including vindicatory damages, in such measure as the court considers appropriate, be awarded against the State of Grenada for the breaches of the claimant’s constitutional rights.

(10) 1nterest pursuant to sections 27 and/or 27A of the West Indies Associated States Supreme Court (Grenada) Act, Chapter 336 of the Continuous Revised Edition of the Laws of Grenada at such a rate and for such period as this honourable court shall deem fit and proper.

(11) Such further or other orders as this honourable court seem just.

(12) Costs.

[3] On 16th November 2020, the Secretary to the Cabinet (the First Defendant), filed an application seeking to be removed as a party in the proceedings. The unopposed application was granted and therefore the Secretary to the Cabinet was removed as a party to the proceedings.

[4] On 19th February 2021, the date set for trial, Counsel for Ms. Charles, Mr. V. Nazim Burke, at the end of his closing submissions stated that he intends to abandon the claims concerning Ms. Charles’ allegations in relation to her legitimate expectation of a promotion and the allegation that the termination of her acting appointment as Permanent Secretary rendered her constructively dismissed or retired. Accordingly, the prayers in reliefs 3, 7 and 8 as contained in Ms. Charles’ originating motion have been rendered nugatory.

[5] The sudden withdrawal of these two substantive challenges raised by counsel for the claimants at the end of the trial and in closing submissions was much to the surprise and chagrin of the court and defendants, especially Counsel for the Public Service Commission who prepared, filed substantial submissions and argued at length on those points. This arbitrary and astonishing withdrawal at the closing submissions stage on those two substantial grounds of the claimant’s originating motion is unreasonable and, in the court’s view, amounts to an abuse of process. The court deprecates such practices which are not in keeping with the overriding objective of CPR 2000 to save time, expense and not waste the court’s limited resources.

Claimant’s affidavit evidence in support of the originating motion

[6] The claimant, Ms. Veronica Charles, filed an affidavit in support of her originating motion on 13th July 2020 and says:

(1) That she is 54 years old and joined the public service on 1st October 1986. Ms. Charles has held various positions in different ministries and departments. In 2011 she was appointed to the office of Director of Social Development in the Ministry of Social Development and held that office until April 2018.

(2) By letter dated 23rd April 2018 from the Public Service Commission, she was appointed to act in the position of Permanent Secretary in the Ministry of Social Development for a period of one year. She states that the position was temporarily vacant and that the last person who held the position vacated the post on or about 17th November 2018.

(3) After the initial period of her acting appointment elapsed, she was invited to continue to act in the position by way of letter dated 19th June 2019 from the Public Service Commission. She states that she continued to act in the position from 17th April2019 to 22nd October 2019. Further, she states that during her acting appointment there were no complaints levelled against her in relation to the performance of her duties as acting Permanent Secretary.

Communication with Cabinet Secretary
(4) At approximately 8:30am on 22nd October 2019, she was summoned by the Cabinet Secretary, who is the Head of the Public Service, to her office and informed that a decision had been taken to terminate her appointment “because of two decisions you made that were not popular”. The two decisions in issue were in relation to the preparation of a supplemental budget for the Ministry and an enquiry to a house being built for a victim of domestic violence in the Prime Minister’s constituency. Ms. Charles replied to the Cabinet Secretary and gave her reasons for both decisions.

(5) Ms. Charles states that later on that day she was notified by the Cabinet Secretary that she was to remain in the position until 28th October 2019, at which time she would be given further instructions. On 29th October 2019, she states that the Cabinet Secretary contacted her and notified her that she should do a handover and brief for Mrs. Chrissie Worme-Charles, Director of Social Development (acting) with the working of the office of Permanent Secretary and to proceed on administrative leave with immediate effect. She states that she complied with this request and proceeded on leave as instructed.

(6) During the period from 30th October to 4th November 2019, she communicated with the Cabinet Secretary both verbally and in writing concerning the instructions to hand over to Mrs. Worme-Charles. Thereafter, on or about 8th November 2019, she was contacted by the Cabinet Secretary, who verbally instructed her to report to the Ministry of Climate Resilience from 11th November 2019. She acceded to this instruction and reported to the said Ministry.

Click here to read Part II.