Soldier loses lawsuit, must pay State's costs

A soldier with the TT regiment who took the Defence Force (TTDF) to court for compensation will instead have to pay the State’s legal costs.

Justice Margaret Mohammed dismissed Cpl Hayden Ochoa’s claim for breach of contract and wrongful and unfair dismissal, saying there was no evidence he had a written contract with the TTDF.

Ochoa was enlisted on November 20, 1996. He moved up to the ranksof lance corporal and was promoted to corporal by June 2011. From 1999-2012, he received various awards, certificates and commendations.

But in 2015, an incident occurred with one of his superior officers and allegations were made against him.

The next year, he was put on resettlement training. This was interrupted on August 31, 2016, when the TTDF selected him to do a senior officers’ professional development course. He said he was of the view that if he successfully completed the promotional course, he would be promoted to sergeant, as he was told by seniors who co-ordinated the course.

Ochoa said he hoped he would be promoted to the higher rank before his 45th birthday so that he would have two more years in the TTDF before he retired at 47, the mandatory age of retirement for sergeants.

He completed the course but was not recommended for promotion because of the allegation against him.

He said he served 20 years of “colour service” – three period and a half colour service, each being six years – but in the fourth period, his contract was unlawfully terminated after he only completed half of his colour service in that period in which he was contracted to serve a six-year contract, which ought to have ended in 2020.

Ochoa claimed he was unfairly or wrongfully dismissed before the completion of the six-year contract and this caused him to suffer loss of prospects of promotion and salaries for his service.

However, at the trial, he agreed that his re-engagement certificate said his re-engagement was approved until November 17, 2017 and not until 2020.

As part of his evidence, he attached his discharge certificate, which said “having served faithfully and honourably” he was retired from the TT Regiment on March 30, 2017, after 20 years and 131 days of meritorious service.

The TTDF, in response to the claim, argued that as a corporal Ochoa was mandated to be separated from service when he reached 45, the mandatory retirement age for that rank.

It also maintained that his service with the colours spanned November 20, 1996-March 30, 2017 when he reached 45. His service to the TTDF represented one period of 20 years and 131 days, and approval was given to him to remain with the TTDF until November 19, 2019, subject to conditions of engagement stipulated by the Defence Act. One of those conditions was that the officer must retire on reaching the mandatory age of retirement for his rank.

The TTDF said Ochoa was put on resettlement training which was designed to prepare a solider for integration into civilian life in preparation for retirement. It paid some $24,000 for his resettlement retraining in events management at the Arthur Lok Jack School of Business, and although Ochoa sought a deferral, so that he could participate in the promotion course, his resettlement training was not suspended.

It also added that since money had already been spent on resettlement training, only the Chief of Defence Staff could approve the suspension of his resettlement training, and since he did not seek one, it could not be suspended.

The TTDF also said completing the promotion course did not guarantee promotion, and, because of the allegation against him, Ochoa could not be promoted before his mandatory retirement on March 30, 2017.

In her decision, Mohammed said there was no evidence that Ochoa had a written contract with the TTDF for 2016-2020.

She said the effect of section 20(2) of the Defence Act and Regulation 7(1) (a) was that the initial term of engagement upon enlistment of a soldier who is 18 years old is the maximum of six years of colour service.

“The effect of section 21(1) of the Defence Act is that a corporal can be re-engaged to continue in the service of the TTDF for additional periods of colour of service but such total period of service including his original period of colour of service is not to exceed a continuous period of 22 years colours of service from the time the soldier was first engaged or the date which he attained the age of 18 years whichever is the latter,” she said.

Mohammed said based on the provisions of the act, Ochoa could not have been engaged until 2020, since his total continuous term of colour service would have been 24 years, which would have been in breach of section 21(1) of the Defence Act.

She also held that the Defence Act and the TT Regiment standing orders did not make promotion automatic, adding that he could not claim unfair treatment since his claim was not a public law claim but a private law action.

Ochoa was represented by Farai Hove Masaisai and Issa Jones. Mary Davis, Anala Mohan and Nairob Smart represented the State.