Gary Nelson Claimant v The Attorney Generl Colin Derrick, Minister of Justice v The Police Service Commission Defendants [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: REMY J.
• Judgment Date: 13 December 2011
• Judgment citation (vLex): [2011] ECSC J1213-1
• Court: High Court (Antigua)
• Docket Number: Claim No. ANUHCV 2008/00552
• Date: 13 December 2011

[2011] ECSC J1213-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. ANUHCV 2008/00552

Between:

Gary Nelson

Claimant

and

The Attorney Generl Colin Derrick, Minister of Justice

and

The Police Service Commission

Defendants

REMY J.

1 The Claimant Gary Nelson is a Canadian citizen and a former Commissioner of Police in the Royal Police Force of Antigua and Barbuda.

INTRODUCTION

2 Pursuant to an advertisement in a Police magazine in Canada, on or about October 2007, the Claimant applied for the vacant position of Commissioner of Police in the Royal Police Force of Antigua and Barbuda. His application and recruitment were donethrough Alphonse Breau (Mr. Breau) who was acting as agent for the Government of Antigua and Barbuda. Sometime towards the end of December 2007, a draft contract was given to him by Mr. Breau for his perusal, whereupon he sought legal advice from his Attorney in Canada, Ms. Janis Payne. The advice was to the effect that the probationary clause in the draft contract was unfair. Two more draft contracts were delivered to the Claimant, both of which contained the probationary clause.

3 Notwithstanding the fact that he received no indication or communication that the said probationary clause would be deleted and further that he received communication from Mr. Breau at the airport on the very morning of his travel, that the probationary period would not be changed and "was not negotiable", the Claimant proceeded to travel to Antigua on the 6^th February, 2008, using his own funds to purchase his airline ticket. By letter dated 29^th February, 2008, the Police Service Commission (the Commission) appointed the Claimant as Commissioner of Police. The Claimant was sworn in on that day —the 29^th February 2008, and he commenced duties as Commissioner of Police the very next day, namely on the 1^st March 2008. No formal contract had been signed. On April 1^st 2008, the Claimant received a letter of appointment signed by the Chief Establishment Officer.

4 On July 4^th 2008, an unexecuted contract was forwarded to the Claimant from the Permanent Secretary in the Ministry of Justice for his signature. The Claimant refused to sign, allegedly "because of the Probationary period of six months." By letter dated 28^th August 2008, the Claimant was dismissed by the Commission for "unsatisfactory performance of his duties."

5 By Notice of Application filed on the 24^th September 2008, the Claimant sought leave to apply for judicial review of the decision of the Commission to terminate his appointment as Commissioner of Police.

6 By Fixed Date Claim filed on the 31^st October 2008 and with the leave of Thomas J granted on the 23^rd October 2008, the Claimant filed a claim for judicial review against the 1^st Defendant, namely the Attorney General of Antigua and Barbuda, the 2^nd Defendant, namely Colin Derrick, Minister of Justice, and the 3^rd Defendant namely The Police Service Commission (the Commission), claiming the following relief:-

• (i) An Order of Certiorari quashing the decision of the Police Service Commission dated August 28^th 2008 to terminate the appointment of the Claimant as Commissioner of Police.

• (ii) A Declaration that the said Police Service Commission acting singularly and/or together with the Minister of Justice, Colin Derrick failed to exercise their power in respect of the termination of the Claimant's appointment as Commissioner of Police reasonably, rationally and lawfully.

• (iii) An Order that the Claimant has a legitimate expectation either procedurally to a fair hearing prior to termination of his appointment as Commissioner of Police and/or substantially to a contractual benefit conferred by virtue of his appointment as Commissioner of Police to be contractually employed in that capacity for a period of two years.

• (iv) An order that the Claimant is entitled to damages, aggravated and/or exemplary damages for the unlawful breach of his contract of employment.

• (v) Costs.

7 The grounds of the application are stated as follows:-

• 1. By letter dated 1^st April 2008 under the hand of the Chief Establishment Officer, the Claimant was employed as Commissioner of Police by the Government of Antigua and Barbuda on contract for 2 years, effective 1^st March 2008.

• 2. The appointment was subject to medical fitness (paragraph 4 of the letter), and the Claimant completed his medical examination on or about the middle of March 2008.

• 3. An "unexecuted contract" was forwarded to the Claimant for his perusal by the Permanent Secretary in the Ministry of Justice on or about the 4^th July 2008 and it remained unexecuted by reason of the Claimant's exception to Clause 5 which provided for a probationary period of 6 months.

• 4. The termination of the Claimant's appointment as Commissioner was in accordance with Section 12 (1) of the Police Act. The said termination was decided, made and prior communicated to the Claimant not by the constitutional authority but by the Prime Minister, the Minister of Justice and Mr. Breau.

• 5. The Police Service Commission:-

  • (a) Failed to properly exercise its statutory discretion in regard to the Claimant and acted as a "mere rubber stamp for the illegal executive act of termination" of the Claimant's appointment as Commissioner of Police.

  • (b) Fettered its discretion to act fairly towards the Claimant by acceding to the executive act of terminating the Claimant's appointment.

  • (c) Acted in bad faith in that it promoted the desire of the executive to terminate the Claimant's appointment and failed to take into account relevant considerations which attended the Claimant's appointment and the subsequent performance of his duties as Commissioner.

  • (d) Acted unreasonably and irrationally in that it failed to bring to the attention of the Claimant any perceived shortcoming and /or dereliction of his duties and/or highlighting any failure on the part of the Claimant to satisfactorily perform the duties of his office.

  • (e) Failed to allow the Claimant a fair opportunity to make any representation as to why this appointment ought not to be terminated.

• 6. The Claimant had a legitimate expectation to the benefit of a contract of employment for two years and expected to enjoy that benefit except on therational grounds for withdrawing it and/or that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that the contract should not be withdrawn. The Police Service Commission's decision to terminate the Claimant's appointment is an unlawful breach of this legitimate expectation.

• 7. The Defendants by their unlawful action have unlawfully breached the Claimant's contract of employment, and that the Claimant has suffered loss and damage as a result of the unlawful action of the Defendants.

8 The Claimant's claim against the Defendants is for:-

• (a) 18 months loss of salary, allowances and perquisites of office for the period October 1^st 2008 to 28^th February, 2009:-

• (b) $ 230,000.00 Canadian dollars or its E.C. equivalent

• (c) U.S. $30,000.00 as housing allowance for the unexpired period of the contract.

• (d) Costs of return airfares to Canada

• (e) Sundry expenses, inclusive of electricity and two months rental (at $6,755.00 per month) total amount $20,201.70

• (f) Legal costs.

ISSUES

9 Mr. Dane Hamilton, Learned Queen's Counsel for the Claimant stated that the issues to be determined by the Court in this case are as follows:-

• (i) What were the terms and conditions of the Claimant's service contract?

  • (a) Was it wholly set out in the Letter of Appointment dated 1^st April, 2008 issued by the Chief Establishment Officer and the Letters of Appointment issued by the Commission on 29^th February, 2008?

  • (b) Is a term to be implied therein that his service would be subject to a probationary period of six (6) months, notwithstanding the parties failed to reach agreement by executing the contract?

• (ii) Did the Police Service Commission act within the scope of their power to lawfully dismiss the Claimant as Commissioner of Police.

• (iii) If the answer to (ii) is no, is the Claimant entitled to recover damages for the unlawful dismissal and if so how much?

EVIDENCE

10 The Claimant Gary Nelson testified on his own behalf. Mr. Colin Derrick, the Second Defendant gave evidence; while the Chairman of the Commission Mr. Stephans Winter testified on behalf of the Third Named Defendant, namely the Commission.

THE CLAIMANT'S EVIDENCE

11 The Claimant, in his Fixed Date Claim filed on the 31^st October 2008, pleads that he relies on the Affidavit sworn to on the 24^th September, 2008 and filed on that same date. In that Affidavit, the Claimant deposed that, on or about the month of October 2007, having seen an advertisement in a Police Magazine, he applied for the vacant post of Commissioner of Police in Antigua and Barbuda. The application was made to Mr. Alphonse Breau who acted as agent for the Government of Antigua and Barbuda. Towards the end of December 2007, a contract was handed to him by Mr. Breau. He gave the contract to his Attorney Ms. Janis Payne for her perusal and vetting.

12 The Claimant deposed that "thereafter ensued a period of vacillation and inactivity" and that he responded by email to Mr. Breau on the 29^th January 2009, expressing his "reluctance to accept a probationary period of six months during which he could be released on payment of one (1) month's salary." He stated that he had been advised by his Attorney that "the provision was unfair." The Claimant deposed that he later expressed to Mr. Breau that "he had enough and that he was going back to work", but that Mr. Breau responded that he (the Claimant), along with the three other chosen officers would fly down to Antigua on February 6^th, 2008. The Claimant stated that "up to this point there was no concluded contract." He stated that he flew down to...