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The Veronica Charles judgement

Beryl Isaac – now serving as head of the Public Service Commission

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 the final part of Justice Actie judgement:-

Administrative leave and transfer

[32] Mr. Burke submits that the duties and functions of the Public Service Commission are clearly stipulated in sections 83(12) and 84(1) of the Constitution. Sections 83(12) and 84(1) of the Constitution provide:

Section 83(12)

The Commission shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.

And section 84(1)

Subject to the provisions of section 91 of this Constitution, the power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office and the power to grant leave shall vest in the Public Service Commission.

[33] Mr. Burke submits that the Commission ought not to take directions from any other person or authority. Mr. Burke avers that the decision to send Ms. Charles on administrative leave was taken on or before 30th October 2019. In like manner, the transfer of Ms. Charles from the office of Director of Social Development to the post of Institutional Strengthening Specialist was taken on or before 8111 November 2019. He submits that these decisions either came from the Cabinet Secretary, acting on a frolic of her own, or under the direction of the Minster of Social Development, the Cabinet of Ministers or some other person or authority. Mr. Burke further submits that the letter dated 18111 May 2020 from the Commission purporting to retroactively grant administrative leave to Ms. Charles from October 31” 2019 to 8th November 2019 was an attempt to “rubber stamp” the decision of a person or body other than itself.

[34] Counsel for the Public Service Commission, Ms. Karen Samuel, submits that Ms. Charles fails to clearly illustrate that the parties had influenced the decision taken by the Commission, which is essential in substantiating such a claim. Ms. Samuel relies on the decision of Wilkinson J in Ausbert Regis, Commissioner of Police v The Attorney General of Saint Lucia. In any event, she submits that the act of requiring an officer to proceed upon leave in order to make proper arrangements for an office cannot constitute a breach of the officer’s constitutional rights. Counsel relies on the judgment of Glasgow J in Strachan v Public Service Commission & Anr in relation to the lawfulness of Ms. Charles’ transfer to the Ministry of Climate Resilience.

[35] The mere fact that the decisions by the Public Service Commission to grant administrative leave to Ms. Charles and to transfer her to the new post of Institutional Strengthening Specialist came ex post facto, in and of itself, does not mean that the Commission abdicated its responsibly or followed the dictates of a third party. The mere fact that a recommendation was made to the Commission does not mean that the commission did not properly exercise its discretion to consider it. Ms. Jeremiah in her evidence has stated the reasons for the delay in officially communicating the decisions of the Commission to Ms. Charles were due to inadvertence and human error. While such instances of administrative inefficiency is unacceptable in an essential department as the Public Service Commission, the court is of the view that the claimant has not lead evidence that the Commission followed the directive of a third party. Accordingly, there is no merit to the allegations based on the evidence before this court.

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[36] Moreover, the principles in Wednesbury as stated above are applicable in the circumstances.

There is no evidence before this court that the Commission acted outside of its duties. There is no allegation or assertion that the Commission took irrelevant matters into account or omitted to consider matters, which it ought to. There is no assertion or allegation that the recommendation from the Cabinet Secretary for the termination of Ms. Charles’ acting appointment on the basis of her insubordination and inefficacious performance as a Permanent Secretary, was an irrelevant consideration for the Commission. Given the lack of supporting evidence by Ms. Charles, the court finds no reason to impugn the decisions of the Public Service Commission in retroactively transferring Ms. Charles to her new post and granting her administrative leave.

Damages
[37] A fair reading of the pleadings in the motion, including the orders and declarations sought, suggest that Ms. Charles was seeking to impugn the decisions of public authorities and bodies.

This matter in the court’s view should have been brought by way of judicial review proceedings, especially in light of the actions of the Cabinet Secretary and not under the court’s constitutional jurisdiction for breaches of fundamental rights and freedoms.

[38] Moreover, damages are compensatory in nature. The uncontradicted evidence before this court from Ms. Jeremiah is that Ms. Charles enjoyed the salary of acting Permanent Secretary in Ministry of Social Development until the end of May 2020, some seven months after she took up the new post in the Ministry of Climate Resilience.

[39] The claimant having part success on her claim in obtaining declaratory relief has not pleaded any other specific loss. In Inniss v Attorney General of St Christopher and Nevis [2008) UKPC 42, in considering this issue of compensatory Damages Lord Hope of Craighead said: –

The function that the granting of relief is intended to serve is to vindicate the constitutional right. In some cases, a declaration on its own may achieve all that is needed to vindicate the right. This is likely to be so where the contravention has not yet had any significant effect on the party who seeks relief.

[40] This court is of the view that a mere declaration of the breach of the claimant’s rights to a fair hearing is appropriate in this case. The court is of the view that that Ms. Charles did not suffer any pecuniary loss during the transition to her new post. The court is also of the view that this case is not one in which an additional award could be made and accordingly her claim for damages, including vindicatory damages is refused.

Conclusion
[41] In light of the foregoing reasons, the originating motion filed on 13th July 2020 is granted in part and it is ordered and declared that:

(1) 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 ‘Paragraph 21 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 11fu 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.

(2) The decisions taken by the Public Service Commission to: (1) advise Her Excellency, the Governor-General of the request for the termination of the Claimant’s acting appoint as Permanent Secretary in the Ministry of Social Development, Housing & Community Empowerment transfer with effect from 31st October 2019; (2) approve the reversion for the Claimant to her substantive post of Director of Social Development; (3) grant administrative leave; (4) and to appoint the Claimant to the new post of Institutional Strengthening Specialist in the Ministry of Climate Resilience, The Environment, Forestry, Fisheries and Disaster Management without first giving the Claimant an opportunity to be heard and make representations was a breach of the principles of natural justice and fairness.

(3) Save the above declarations, all other reliefs as claimed by the Claimant, including interest are refused. The declarations and orders in relation to the issues of constructive dismissal, legitimate expectation and breaches of section 8(8), 83(12), 84(1) and 101 (3) of the Constitution of Grenada, are now irrelevant and redundant in light of the counsel for the claimant having withdrawn those issues.

(4) No order as to costs.

Agnes Actie
High Court Judge
DEPUTY REGISTRA
SUPREME COURT
OF GRENADA