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EVERYDAY LAW: 2009 case will be key

Cecil McCArthy

EVERYDAY LAW: 2009 case will be key

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The Barbadian case of Winton Campbell vs Attorney General of Barbados, decided by the Caribbean Court of Justice (CCJ)?in 2009, is likely to play a significant role in the determination of cases in which the terms and conditions of service of a public officer are an issue.
In that case, the appellant’s post of Chief Electrical Engineer was abolished and the matter of his entitlement to compensation from the Crown was the main issue before the court.
The CCJ took the view that on the facts the appellant was sufficiently compensated by the accelerated payment of his pension, so that no question of damages arose. What is of more significance for the development of the law is the discussion of how the terms of employment of a public officer may be supplemented by terms agreed between the public officer and his employer.
Below is the relevant discussion of the matter by the CCJ minus the case references: Can Abolition of a Public Office Lead to a Contractual Remedy?
[37] The question arises as to whether the Appellant actually received pension – or a recently retired senior civil servant’s deferred pension – is the full extent of the entitlement of such a person who has retired before the age of 60 years, by virtue of the abolition of his unique public office, and who has no judicial review claim concerning the circumstances in which the statutory order abolished his office.
Is it possible that damages for breach of contract may be claimed based upon some contractual element of the holding of a public office?
In the circumstances of the appellant’s actual accelerated receipt of a pension and in the absence of detailed argument from counsel, no definitive answer need yet be given.
[38] What is the true nature of the relationship between public office holders and the Crown as executive authority of Barbados (through the Governor General and the Government of Barbados under Chapter VI of the Constitution headed “Executive Powers”)?
In the light of Chapter VIII of the Constitution, headed “The Public Service” and of the Service Commissions (Public Service) Regulations containing detailed disciplinary conditions, public office holders are no longer personal servants of the Crown dismissible at pleasure because the Crown can do no wrong or because this is always implied in the relationship, as made clear by Sir Denys Williams CJ and the Barbados Court of Appeal in King vs the Queen.
Sir Denys Williams CJ and the Barbados Court of Appeal also treated King, a clerical officer, as being a public officer under a contract of employment, but a contract which had to be consistent with statutory provisions which affected the contractual relationship.
[39] After all, there may well be discussions between the executive and the prospective office holder giving rise to mutually agreed written terms as to starting date, salary grade and other conditions of the appointment within the framework of the Constitution (particularly Chapter VIII) and any other relevant primary or secondary legislation.
While contractual terms cannot modify or exclude mandatory statutory provisions, it can be argued that the statutory framework stands within the common law and does not exclude common law principles except expressly or by necessary implication (as may be the case for the judges, ministers of the Crown and others who fulfil constitutionally defined state roles).
[40] The relationship between the Crown and the public officer holder will then have significant contractual elements though these will be affected by statutory rights and obligations and in respect of which the office holder is able to resort to administrative law remedies in the absence of adequate contractual remedies.
[41] The appellant’s office (like most public offices) can be abolished at will by an order made by Parliament at the instigation of the minister responsible for the Civil Service so long as such order is not impeachable in judicial review proceedings.
However, the appellant’s office has plenty of protection under the Service Commissions (Public Service) Regulations 1978, as amended from time to time, so that it can be submitted that his appointment to perform the tasks allocated to the Chief Electrical Engineer by the Electricity Act appears to be one that will endure until retirement age so long as he was not guilty of behaviour causing him to fall foul of the Regulations, subject, of course, to the overriding statutory power to abolish his public office at any time.
[42] It can be argued that this latter overriding power is so omnipotent that a public office holder can effectively be dismissed by the executive if acting in a fashion unimpeachable in judicial review proceedings and yet have no right to compensation for breach of contract. Thus the officer is in a precarious position.
[43] On the other hand, it can be argued that a purposive approach to interpreting the Crown-public officer relationship indicates that the Appellant reasonably would not consider himself to be in such a position when the terms of his appointment were offered to him.
Did he not reasonably expect that he was acquiring a specially protected position, essentially a tenured position, for the performance of the statutory tasks of the Chief Electrical Engineer, with substantial financial benefits and security?
These are intended to protect his independence in decision-making in the public interest and to attract able persons to take up public offices rather than seek employment in the private sector where remuneration is usually better.
Surely the Minister for the Civil Service did not view his powers under the Civil Establishment Act as enabling him with the assistance of a statutory Order to destroy the security of employment and the conditions of employment which the Public Service Regulations were designed to protect.
Thus, it can be argued that the Appellant was reasonably entitled to expect that he would continue as part of the permanent establishment in the public service performing the tasks allocated to the Chief Electrical Engineer until the retiring age unless removed or retired for disciplinary reasons under the Public Service Regulations.
[44] The only qualification upon such an interpretation of the employment relationship would be the outside possibility that a statutory Order could be made to abolish his office properly and in good faith in the interests of efficient public administration. This will deny him the remedy of a declaration that his office continued and prevent him claiming a salary and other ongoing benefits attached to that office.
Nevertheless, he will have the right to a deferred pension under section 13A (2) and (3) of the Pensions Act. It can be argued in the interests of the Crown that this right alone is sufficient.
On the other hand, why should he not be entitled to some damages for breach of contract for loss of an employment providing him with substantial financial security? How should one balance the interests of the Crown and the interests of the office holder?
[45] To answer this, one needs to take account of the judgment of Major J, giving the unanimous judgment of all nine members of the Supreme Court of Canada in Her Majesty The Queen In Right Of Newfoundland vs Wells, and to consider its relevance in contemporary Barbados.
It concerned the office of “Commissioner (Consumer Representative)” on a Public Utilities Board, held by Wells during good behaviour until attaining the age of 70 years, but which had been abolished by a new Public Utilities Act.
Major J stated: “The apparent anomaly of a tenured position in a realm where the government has an unfettered right to change an administrative structure is resolved by observing the distinction between the respondent’s right to hold office as a commissioner and his right to the financial benefits of having agreed to serve in that capacity.
While the legislature is free to remove the power and responsibility of the office, in doing so it does not strip the respondent of the compensation flowing from the contract unless it specifically so enacts.”
• Cecil McCarthy, QC, is a Queen’s Counsel.