Appeal Court to rule on procedure to discipline senior public servants

THE COURT of Appeal will on Thursday give its decision on an appeal filed by the Public Service Commission (PSC) against a judge’s ruling involving a senior public officer.

Although the issue involving the public officer – a then acting permanent secretary – has since been resolved, the commission’s attorney Russell Martineau, SC, asked the Appeal Court to clarify the law on how disciplinary proceedings against senior public officers are to progress since there were decisions in the 2018 ruling of Justice James Aboud that made the law uncertain.

“We want the law clarified. It (the PSC) does need this matter resolved as it will keep coming up.”

The PSC’s appeal concerned Aboud’s ruling in a claim filed by the senior public officer who, in 2016, faced 26 charges of misconduct against her. She challenged the decision to interdict her from duty on one-half salary pending the outgoing of the disciplinary matter.

In his ruling, Aboud granted several declarations that the decision of the PSC not to provide the acting PS with documents relating to the charges, to interdict her and to send the matter to a one-man tribunal were in excess of the commission’s jurisdiction and contrary to law as they were in breach of natural justice. He also granted an injunction preventing the PSC from appointing or convening the tribunal until the public officer received the documents she said were needed to defend the charges. Aboud also held the PSC should have advanced its public interest considerations so that the deputy PS could properly respond to the interdiction.

Martineau told Justices of Appeal Alice Yorke-Soo Hon, Gregory Smith and Vasheist Kokaram the judgment of the first-instance judge stood as guidance for the future and would “remain on the books as the law” unless they pronounced on it and provided clarity on how the regulations should be applied.

In response, Ian Benjamin, SC, who represented the deputy PS, said the case was an extraordinarily exceptional one and Aboud handled it properly.

He said the commission had to ensure fairness, pointing out that a decision to interdict had financial ramifications for the public officer and could have been viewed as a pre-charge punishment.

“What is the public interest justification for punishing me in this way?” he submitted.

He said there was an obligation by the PSC, purely on natural justice considerations, to let the public officer know why she was being suspended, especially when it was the commission that asked for her representation.

“You are being suspended but not being told on what basis… There is an obligation to provide me with the documents so I can provide the representation you requested of me.”

The attorneys also presented submissions on how the court should interpret the regulations as it related to senior public officers.

At the end of the hearing, Soo-Hon said the court will give its decision on Thursday.