EVERYDAY LAW: Reasonable cause for dismissals
In last week’s article I discussed the case of Attorney General of Dominica vs Miriam Williams et al where, among other things, the Court of Appeal of the Eastern Caribbean Supreme Court, held that compulsory retirement in the public interest is in fact a removal from office.
Incidentally, this is not the only Caribbean decision that has so treated the issue of retirement in the public interest.
Consistent with the above decision it follows that any action taken under similar legal provisions must take account of Privy Council decision of Thomas vs Attorney General (1981), where a police officer had challenged his dismissal from the Trinidad police force by way of judicial review.
The Attorney General of Trinidad and Tobago had argued that the officer was a public servant and dismissable at pleasure.
The headnote captures the essence of the decision of the Privy Council in the following passage:
“The power of the Police Service Commission to remove from office in the Police Service . . . embraced every means by which a police officer’s contract of employment (not being a contract for a specific period) could be terminated against his will; but the power to remove meant the power to remove only for reasonable cause (of which the commission was the sole judge), although the expression “reasonable cause” was not restricted to wilful misconduct; . . . .”
The court decided that the power of the commission to remove from office meant a power to dismiss for reasonable cause.
The court gave some guidance on what was meant by reasonable cause. It explained:
“Reasonable cause is not confined to wilful misconduct; it would embrace reasons such as such ill-health or unsuitability of temperament or even some personal characteristic, any one of which, through no fault of his own, had rendered a particular officer unfitted to perform with reasonable efficiency . . . .”
The issue of retirement of police officers in the public interest has been litigated in a number of Caribbean countries, notably Jamaica, where senior and junior officers have been retired on the basis of alleged participation in criminal activity.
In those cases the general practice has been to notify the person that is to be retired about the reason for the decision and to invite him to respond and show cause why it should not be recommended to the Governor General that he be retired.
From the cases, it would appear that an oral hearing is not necessary, but natural justice requires that the “accused” be given an opportunity to put his case.
What the cases also reveal is that the commission has not always got it right.
Indeed, a review of the public law cases demonstrates that those charged with the responsibility often get the law or the procedure wrong.
Those entrusted with the responsibility to make decisions in this area must familiarize themselves with the case-law on the subject.
In the case of Barbados, decisions are essentially for the Service Commission alone in most cases. If the decisions are made by the executive they can be struck down on an application for judicial review.
Even if they are made by the correct body, they must be done in accordance with the procedures set up by the body or the applicable laws; otherwise they can be challenged.
For example, a body may have a right to dismiss or to suspend but other conditions must be fulfilled as part of the legal use of those powers.
My last four articles, including this one, have been intended to give an insight into the provisions that govern the services commissions in the discharge of their duty to exercise disciplinary control over the employees that come within their purview; to consider some of the cases in which those provisions have been interpreted; and to hopefully give some basic knowledge on an area of law that can be very technical.
This article is the last in the current series.
• Cecil McCarthy is a Queen’s Counsel.