Derek Achong
Senior Reporter
derek.achong@guardian.co.tt
A retired fire officer has suffered a final defeat in his legal battle over being allegedly bypassed for promotion based on varying stances on the applicability of his postgraduate qualifications.
Delivering a majority judgment yesterday, four out of five Law Lords of the United Kingdom-based Privy Council ruled that the local Court of Appeal was wrong to have upheld Ian Green’s case against the Public Service Commission (PSC) after it was dismissed by High Court Judge Frank Seepersad in late 2016.
Sir Anthony Smellie delivered a dissenting judgment in which he ruled that the local appeal court could not be faulted.
Green’s case related to his bid to be promoted from the rank of Fire Sub-Station Officer (FSSO) to Fire Station Officer (FSO) before he eventually reached retirement age in 2015.
In 2006, Green asked for his Postgraduate Diploma and Master’s Degree in Human Resource Management to be considered equivalent to the Graduate Diploma of the Institution of Fire Engineers, which is required for promotion under the Fire Service Regulations.
The then-Chief Fire Officer (CFO) indicated that he had no objection to the equivalence request, subject to the concurrence of the Permanent Secretary of the Ministry of National Security and the Chief Personnel Officer (CPO).
Several months later, the CPO issued a memorandum indicating that the equivalence could not be granted as Green’s qualifications did not pertain to the technical aspects of firefighting.
However, the CPO agreed that he could be exempted from writing a promotional examination based on his qualifications.
Green filed the case after he was excluded from a promotion exercise in 2013.
He claimed that his constitutional right to equality of treatment was breached based on the varying positions.
The case was rejected by Justice Seepersad, who ruled that he had not met the criteria for promotion as the CFO did not have the final say on the issue.
Green advanced new grounds before the Court of Appeal as he claimed that the regulations were unconstitutional as they interfered with the independent role of the PSC in deciding promotions, including the criteria for such.
The Appeal Court agreed as it overturned Justice Seepersad’s ruling and ordered compensation for Green.
Lord Raymond Doherty, who delivered the majority’s judgment, noted that the PSC did not have the power to set the criteria for promotion.
“The assessment of which eligible officers to appoint and the eligibility criteria are distinct questions...The task of setting minimum criteria is for the executive, whereas the task of assessing a candidate for appointment, who satisfies those criteria, is for the PSC,” Lord Doherty said.
He stated that the Appeal Court defined the CPO’s role too narrowly.
“Classification requires an understanding of job specifications and the qualifications needed to do a job. In that regard, the Personnel Department is a repository of the learning and expertise of the state as employer,” Lord Doherty said
He recommended that public bodies consult with the CPO once they have the discretion to do so.
He also ruled that the Appeal Court was wrong to have ruled that the PSC’s decision to promote others instead of him, based on the CPO’s position, was irrational and contrary to natural justice.
“The Court of Appeal’s reasoning is premised on the view that the CFO determined that the respondent held an equivalent related qualification, but that the PSC preferred to be guided by the CPO’s memorandum of 15 December 2016. Neither premise is correct,” he said.
The PSC was represented by Rishi Dass and Tamara Toolsie. Green was represented by Kenneth Thompson, while Peter Knox, KC, and Robert Strang represented the CPO.
