Gerald v The Governor of Montserrat et Al

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Alleyne, J.A.
• Judgment Date: 29 March 2004
• Neutral Citation: MS 2004 CA 2
• Docket Number: Civil Appeal No. 2 of 2003
• Date: 29 March 2004

Gerald

and

The Governor of Montserrat et al

Redhead, J.A.; Alleyne, J.A.; Gordon, J.A. (Ag.)

Civil Appeal No. 2 of 2003

Court of Appeal

Judicial review - Demotion — Application for declarations inter alia that (a) charge of “General Misconduct contrary to General Orders, 311(iv)” made against plaintiff was not capable of being regarded as of a political or administrative nature (b) the plaintiff was treated fairly in accordance with the rules of natural justice (c) transfer of the plaintiff out of Ministry of Agriculture was arbitrary and without justification (d) plaintiff had been constitutionally dismissed from the Public Service and was entitled to substantial damages — Finding that the decision in effect to demote the appellant was arbitrary and without justification — Purported transfer held null and void — Appeal allowed and matter remitted to the High Court for hearing to assess damages.

Appearances:

Mr. Sydney P. Christian QC, Mr. Jason Martin with him for the appellant.

Mr. Glenford Hamilton and Mr. Jason Hamilton instructed by Walwyn Law for the respondents.

Alleyne, J.A.

1 The appellant Claude Gerald was Director of Agriculture in the Ministry of Agriculture of Montserrat on December 15 ^th, 1999. He had held this post for in excess of two and a half years. He had been a public officer for in excess of 20 years. He was admittedly extremely well qualified in the field of agriculture and was well suited for the post which he held. On that day the Ministry held an agricultural exhibition at which Mr. Gerald gave the welcoming remarks. He was fulsome in his praise for the former Minister of Agriculture, but failed to mention the newly appointed Minister of Agriculture, who was present at this, the first public event of his Ministry since he assumed office. Mr. Gerald was charged by the Department of Administration with the offence of general misconduct contrary to General Orders Order 311(iv), in that:

“you spoke in public on a matter reasonably regarded as of a political or administrative nature, namely the appointment of the Honourable P. Meade as Minister in place of Honourable P.A. Bramble.”

2 The letter by which the charge was laid, dated 5 ^th January 2000, required Mr. Gerald to state in writing by Wednesday 19 ^th January 2000 any reasons why disciplinary proceedings should not be instituted against him. Mr. Gerald replied in writing on 6 ^th January. He denied the charge and stated that his remarks sought to offer praise and commendation to the two individuals who were instrumental in the planning and execution of the exhibition. He said that he did not seek to nor indulge in any reference to the appointment or replacement of the respective Ministers.

3 On 17 ^th January Mr. Gerald appeared before the Public Service Commission in respect of this charge. He admitted that he had omitted to mention the name of the new Minister in his opening remarks at the exhibition, and offered to write a letter in that regard. The Public Service Commission administered a severe reprimand. In addition the Commission requested that he submit a draft of his proposed letter, which he did. On 19 ^th January, he met with a sub-committee of the Commission to review the draft, and was instructed to make some amendments to the draft. He complied, and the revised draft was found to be satisfactory, as he was informed by the Assistant Permanent Secretary (Administration). He thereupon, on January 21 ^st 2000, sent the approved letter of apology to the Honourable Minister who had been offended by his remarks, and considered the matter to be at an end. He received no further communication from the Public Service Commission in connection with that incident. It is apparent that the Public Service Commission considered the matter closed.

4 On 18 ^th April 2000 the Permanent Secretary of Administration wrote to Mr. Gerald advising him that His Excellency the Governor of Montserrat had decided that the interests of the public service required that he be transferred from the Ministry of Agriculture, and by letter dated 6 ^th June 2000 he was informed that effective 5 ^th June he had been removed from the post of Director of Agriculture and appointed to the position of Principal Assistant Secretary in the Ministry of finance, a position subordinate to that of Director of Agriculture and for which, moreover, he says he has no training, experience or qualifications.

5 Mr. Gerald filed a claim for judicial review by which he sought the following relief:

• (a) A Declaration that the charge of “general misconduct contrary to General Orders 311 (iv)” made against the Plaintiff in that the matters about which the Plaintiff spoke on 15 ^th December, 1999 in his official capacity of Director of Agriculture were not capable of being regarded as of political or administrative nature.”

• (b) A declaration that the Plaintiff has not been treated fairly in accordance with the rules of natural justice by the Governor and/or by the Public Service Commission and/or that there has been no adjudication on the disciplinary charge brought against the Plaintiff.

• (c) A declaration that the act of transferring the Plaintiff out of the Ministry of Agriculture was not effected in due course of law, was arbitrary and was without justification.

• (d) An order directing the Governor to transfer the Plaintiff back to the Ministry of Agriculture as Director of Agriculture.

• (e) A declaration that the Governor has no power to transfer the Plaintiff out of the Ministry of Agriculture without his consent and that the Governor and/or the Public Service Commission failed to show any or any sufficient cause for transferring the Plaintiff against his will from the Ministry of Agriculture to the Ministry of Finance.

• (f) A declaration that the charge brought against the Plaintiff for his remarks at the exhibition on 15 ^th December, 1999 was an invalid charge, and as a result it amounts to a hindrance to his right to freedom of expression guaranteed under section 60 of the Montserrat Constitution 1989 and is an improper and invalid restriction upon him as a public officer.

• (g) A declaration that the Plaintiff is entitled to compensation for the manner in which he has been treated since his return to work in June, 2000.

• (h) Alternatively, a declaration that the Plaintiff has been constructively dismissed from the Public Service, and is entitled to substantial damages for the arbitrary manner of such dismissal.

• (i) The cost of and incidental to this application may be paid by the third named Respondent.

6 The matter came on for...