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EVERYDAY LAW: On the power to transfer . . .


Cecil McCarthy

EVERYDAY LAW: On the power to transfer . . .

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Today, I discuss the local High Court case, Charles Brathwaite v the Chief Personnel Officer et al (2009) which dealt, in part, with the power to transfer a public officer.
The applicant, Charles Brathwaite was appointed on September 14, 1998, to the post of Principal Training Officer by the Governor General acting on the advice of the Public Service Commission in accordance with Section 94 of the Constitution.
On November 2, 2005, the Permanent Secretary of the Ministry of the Civil Service informed Brathwaite he would be seconded to the unestablished post of Special Assignments Officer with effect from November 3.
Brathwaite filed an action against the Chief Personnel Officer, the Public Service Commission and the Attorney General for relief by way of judicial review.
The court held that the actions of the Chief Personnel Officer in purporting to second Brathwaite were contrary to law and therefore, void and of no effect.
According to the judgement:
“[100] All parties are agreed that the combined effect of sections 94 and section 117(3) of the Constitution of Barbados is that appointments in the Public Service, including promotion and transfer, are made by the Governor General.
[101] Section 117(3) states:
“Any reference in this Constitution to power to make appointments to any office shall be construed as including a reference to power to make appointments on promotion or transfer to that office and [the] power to appoint a person to act in or perform the functions of that office during any period during which it is vacant or during which the holder thereof is unable (whether by reason of absence or infirmity of body or mind or any other cause) to perform those functions.
[102] This authority is further codified in the General Orders and Operational Service Manual of the Ministry of the Civil Service which makes clear where the authority to transfer established and unestablished staff lies.
“2.17 The authority to effect appointment on transfer in respect of the holders of public office is vested in the Governor General acting in accordance with the advice of the appropriate Services Commission except that in relation to the offices specified at section 99 of the Constitution, the Commission is required to consult the Prime Minister before effecting such an appointment and in respect of the holder of an office of Permanent Secretary the authority to make an appointment on transfer is exercised only on the recommendation of the Prime Minister.
[103] I am of the view that secondment is merely a form of transfer and as such the authority to so do emanates from sections 94 and 117(3) and is merely codified in the General Orders. It is my submission therefore that the core issue here is not the distinction between transfer and secondment, but rather, whether a transfer/secondment from an established position (the authority for which is vested in the Governor General) to an unestablished and temporary position (the authority for which is vested in the Chief Personnel Officer) can be carried out by the Chief Personnel Officer, as in these circumstances.
[104] The answer in my opinion is to be found in a determination of the scope and intent of Chapter VIII of the Constitution.   
[105] Having resolved that a ‘secondment’ is a ‘transfer’ within the meaning of the Constitution, it must perforce be covered by the protective provisions which the Constitution so clearly extends to ‘established’ officers in the public service. It stands to reason that unless expressly stated otherwise the statutory intendment was that an established officer should not be transferred except by the authority of the Governor General.  
[106] To place a public officer in the protected position of being an “established public officer” and then create a situation where he can be stripped of that protection by merely “seconding” or “transferring him to an unestablished, temporary position outside the coverage of the protective provisions would, in my opinion, subvert the intendment of these constitutional provisions.”
• Cecil McCarthy is a Queen’s Counsel.

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