At the time when the Government following a new Constitution in 2010, is considering a brand new Public Service Act, the Eastern Caribbean Court of Appeal on Wednesday this week heard arguments from Attorney-at-Law Jean Kelsick for Geraldine Cabey, appellant, and Sheree Jemmotte-Rodney for the Crown as respondents, in the matter Geraldine Cabey vs The Governor et al .
Of interest there were at least two other matters heard by the courts this week involving labour matters surrounding hiring and retiring of persons.
Governor Deborah Barnes Jones on December 15, 2006 wrote to the Appellant, a long letter which among other statements said: “…I have come to the determination that in all the circumstances it is in the public interest you should be retired from the Public Service,” on December 31, 2006.
The appellant in May 2009 then sought relief from the High Court seeking several reliefs, including declarations to the effect that the decision to retire her was null and void, illegal and of no legal effect; and that the decision to retire her was ultra vires the Public Service Commission Regulations.
Justice Albert Redhead presided in the matter at the High Court level and held that “…a distinction must be drawn between dismissal and retirement in the public interest.” Attorney for the Appellant Jean Kelsick had argued that the Governor in her determination utilised the subjective test in relation to public interest. He held that there was no punishment against the appellant as she had retained on her retirement all of her pension and gratuity.
At the Appeal Court this week with Justices Louise Blenman, Gerthel Tom and Don Mitchel sitting sitting, Kelsick arguing again for the Appellant maintained that that the Governor’s decision to retire her was illegal since it infringed the principle enunciated in the case of R v. Sussex Confirming Authority which indicated the objective test ought to be utilised when determining the public interest.
The court in ruling on that submission stated: “We have reviewed the judgment and we find that at paragraphs [31] to [39] of the decision the Learned Trial Judge stated what he considered the effect of R v. Sussex case to be. And he opined that in his judgment the decision of the Governor could only be successfully challenged on the grounds that the discretion was improperly exercised, for example, on the grounds of improper motive, bias, bad faith or a breach of the rules of natural justice, and that there is no basis to impose any other condition. We have no doubt that the legislation gave the Governor the discretion acting properly to retire a public servant in the public interest once the Governor takes into consideration all the relevant factors, such as public confidence, relationships between the claimant and colleagues, the efficiency of the department, and its smooth functioning. Accordingly, this ground of appeal.”
As it regards the legality of the public service commission’s actions the court said, they “were not of the view that the Learned Trial Judge erred in concluding that the Governor’s decision to retire the appellant was intra vires regulation 35(1) of the Public Service Commission Regulations 1980 and General Orders 43, 219 and 220. There was no evidential basis on which the Learned Trial Judge could have come to a conclusion to the contrary.”
In addition the court also said “We are not of the view that the retirement of the Appellant in public interest amounts to disciplinary proceedings. We agree with the persuasive argument of Ms. Jemmotte Rodney in preference to the arguments of Mr. Kelsick in this respect.’
The Judgment of Learned High Court judge Justice Redhead was affirmed.
No order as to costs was made because as the learned Justice of Appeal and Acting President of Appeal Blenman said “the appellant was not unreasonable in making application or conducting proceedings.”
