Former soldier loses case for compensation

FORMER soldier who challenged a decision by the Defence Force (TTDF) to re-engage him after his term of engagement came to an end in 2017, will have to pay the State’s costs in his failed judicial review/constitutional claim.

On Wednesday, Justice Ricky Rahim dismissed Dereck Hughue’s claim for compensation for alleged breaches to his rights.

Hughue was a corporal assigned to Camp Cumuto. He enlisted in 1998 and was classified as a junior non-commissioned officer.

His lawsuit alleged he was summoned by his commanding officer in June 2016, regarding an outstanding debt he owed to a financial institution and as a result of this and since his contractual period was coming to an end, he would not be re-engaged with the TTDF.

Hughue argued he was not given a chance to explain the debt and was never invited to undergo resettlement training so he could transition into a new career and the decision of his commanding officer was unfair, unreasonable and unlawful as it went against the Defence Act.

He also complained he was denied the opportunity to have the discharge decision reviewed before the defence council.

In response, the TTDF insisted that Hughue was lawfully discharged and his conduct, on several occasions, had been brought into question.

It maintained the onus was on Hughue to make a written application for resettlement training but he failed to do so and any hearing before the council would have had to be initiated by him but he also failed to do so.

Rahim had to determine if Hughue’s discharge was unlawful and if the decision not to re-engage him infringed his rights to protection of the law. The judge also had to determine if his discharge amounted to a breach of natural justice and if he had a legitimate expectation.

In his ruling, Rahim said it was clear on the evidence that the refusal to re-engage Hughue was linked to allegations of misconduct and inefficiency.

However, he said while it was the court’s view that the soldier was entitled to know why he was not being re-engaged, there was no legitimate expectation of re-engagement since it was solely within the purview of the commander and Hughue’s record showed serious allegations against him, including falsifying sick leave documents.

“In the courts’ view, in his administrative capacity, the head of the TTDF is entitled to consider conduct not only in so far as same results in convictions only, but also allegations which seem well grounded in fact by way of investigation.

It is not unreasonable for those serious allegations to have been considered in the round when making a decision as to whether to re-engage,” the judge said.

He also added there were matters on record to which Hughue was convicted which foreshadowed complaints of him being absent without leave for numerous period.

“The court therefore finds that although the claimant was not informed of the reasons for his discharge which he ought properly to have been informed of six (6) months prior to discharge, there occurred no adverse consequence by his subsequent discharge having regard to his record of conduct which were matters that could be validly considered by the authority responsible for making the decision whether to re-engage.”

Rahim also held the constitutional propriety of the TTDF in treating with Hughue could not be faulted and its actions were not unlawful.

He also held the view that Hughue was engaged on contract for a specific period and expect for the failure to inform him of the reasons for his non-reengagement, the decision was in keeping with the “tenets of logic, reason and good administration” and was in no way “fanciful or whimsical.”

On Hughue’s complaint that he was not given resettlement training, Rahim said the individual must indicate a desire to proceed on such training and the onus was on the soldier to make such a choice and communicate same to the TTDF.

“To put it another way, in no way does the policy place the onus on the TTDF to offer resettlement training. The duty of the TTDF in the court’s view, at its highest, is to inform its soldiers of the existence of the option available to them.”

He said in this case Hughue knew of the option but failed to opt in.

And on the complaint he was denied an opportunity to complete 20 years’ service so he could get a pension, the judge said it was the TTDF’s evidence that having not made that term of service, Hughue was entitled to a refund of his pension contributions and a gratuity for the period of his service.

Hughue was represented by attorney Ronald Simon while the State was represented by attorneys Svetlana Dass and Tinuke Gibbons-Glenn.