Two senior T&T Defence Force (TTDF) officers have succeeded in their lawsuit over being bypassed for promotion.
Delivering a judgment, yesterday morning, High Court Judge Frank Seepersad upheld Lieutenant Colonels Jozette McLean and Dexter Metivier’s judicial review lawsuit over the handling of their promotions by Chief of Defence Staff (CDS) Air Vice Marshall Darryl Daniel.
In the lawsuit, McLean and Metivier claimed that earlier this year, T&T Air Guard Wing Commander Kemba Hannays and Lieutenant Colonel Keston Charles were wrongly promoted to the ranks of acting Vice Chief of Defence Staff (VCDS) and Commanding Officer of the T&T Regiment, respectively, ahead of them.
They contended that Daniel engaged in a process that was patently unfair and fundamentally flawed when he recommended Hannays and Charles, whom they (the duo) considered to be junior in rank to them.
In determining the case, Justice Seepersad first had to determine whether he had the jurisdiction to review personnel placement within the military.
He ruled that he had the ability to determine whether the process adopted by Daniel was consistent with the established legislative framework and was fair and transparent.
Justice Seepersad noted that while the Defence Act is silent on who has the authority to make promotion recommendations for senior positions in the TTDF to the National Security Minister, Daniel recommended Hannays and Charles earlier this year.
He suggested that the Defence Council, whose members are the CDS, the National Security Minister, the permanent secretary of the ministry, and two Cabinet ministers appointed by the Prime Minister, should instead make such recommendations in the interest of procedural regularity and transparency.
“Evidently, there is the need for greater checks and balances when dealing with promotions and/or advancements to senior ranks especially given the minister’s articulated view that the information as to the suitability, performance, qualification, seniority and attitude resides within the office of the Defence Force,” he said.
He suggested that the legislation be amended so that the council could also include at least one retired senior military officer.
“The suggestion advanced may offer a greater degree of insulation against unfairness, bias, or favouritism as opposed to the exercise of the function to advance recommendations being discharged by an individual officer holder,” he said.
In the lawsuit, Daniel claimed that while McLean was senior to Hannays from a “time” perspective, Hannays had more “command presence” than McLean based on her role as a formation commanding officer.
Noting that “command presence” was not official policy, Justice Seepersad relied on the evidence of retired VCDS Brigadier General Archilus Phillips, who testified on behalf of McLean and Metivier.
He pointed out that Daniel did not present evidence from any of his seven living predecessors to buttress his claim that the cited promotion criteria were valid.
“The court therefore holds the view that the concept of command precedence cannot be viewed in isolation and overall command experience seems to be an operative factor which should be considered when recommendations for advancement or promotions are to be made,” he said.
Justice Seepersad noted that while Daniel claimed that there were four officers higher in precedence to the duo, they (the duo) pointed out that one held the post of VCDS, one was the commanding officer of the Cayman Island Defence Force, another was the military defence attaché to Washington DC and the other was preparing to retire.
He ruled that McLean and Metivier were senior to Hannays and Charles.
“If the CDS’s position in relation to the claimants’ place on the seniority list is accurate, then several other persons were also bypassed for promotion but no reasons were proffered as to why they were bypassed,” he said.
In ruling that the duo’s natural justice rights had been breached, Justice Seepersad stated that Daniel did not give them an opportunity to be heard before he took the decision to recommend Hannays and Charles.
“This type of arbitrary decision making cannot be condoned, it dampens morale, adversely affects the confidence of officers in the impartiality of the institution and ultimately erodes public trust and confidence in the institution’s integrity,” he said.
Justice Seepersad also criticised Daniel for failing to complete the duo’s annual performance appraisals, which are considered in promotions.
“The buck stops with him and he must ensure that all appraisals for the relevant officers are completed in a timely manner so as to enable him to engage in a rational and objective assessment as to their overall suitability for advancement or promotion,” he said, as he noted that such appraisals for Hannays and Charles were completed.
The outcome of the case was not a total success for the duo as Justice Seepersad ruled that they did not have a legitimate expectation that they would be promoted and were not entitled to financial compensation.
Justice Seepersad did issue a series of declarations against Daniel’s conduct and an order for a new merit list to be prepared and submitted in light of his judgment. The TTDF was also ordered to pay the duo’s legal costs for the lawsuit.
He also suggested that the Defence Council issue a comprehensive promotion policy for high-ranking positions.
“The perception that in this republic mediocrity rises to the top has to be altered and focus must be centred upon the attainment of excellence,” he said.
“This objective can only be achieved when competence, suitability and efficiency are objectively rewarded in furtherance of the best interest of the organisation,” he added.
The duo was represented by Arden Williams and Mariah Ramrattan. Daniel was represented by Kerwyn Garcia, SC, and Rachel Theophilus, while Senior Counsel Michael Quamina represented the Minister of National Security.