Appeal Court reverses fireman’s win in case over promotion

A COURT of Appeal has reversed a judge’s ruling in favour of a senior fire officer bypassed for promotion in favour of a colleague, who was his junior.

In 2021, Justice Margaret Mohammed ruled for then-acting Assistant Chief Fire Officer (ACFO) Siewnarine Ramsaran's judicial review and constitutional motion lawsuit against the Chief Fire Officer (CFO), Public Service Commission and the Office of the Attorney General.

Ramsaran has since retired. However, he has since appealed to the Privy Council.

In her ruling, Mohammed separated his complaint into two periods – pre-August 2019 and post-August 2019. She ruled in his favour in the latter and ordered that he should be compensated for the unfair decision of the commission not to consider him to act as deputy Chief Fire Officer (DCFO) from August 2019, and for an alleged breach of the commission's regulations. The commission and the CFO were directed to reconsider Ramsaran for the acting appointment to the post of DCFO.

However, the CFO, the commission and the AG appealed the judge’s findings in favour of Ramsaran and were successful.

Justices of Appeal Prakash Moosai, Charmaine Pemberton and Gillian Lucky set aside Mohammed’s orders for the post-August 2019 period after finding she erred in law and misinterpreted the evidence, which led to her arriving at incorrect conclusions.

Ramsaran's cross-appeal against the judge’s dismissal of his complaints for the pre-August 2019 period was also dismissed.

In his lawsuit, he said he applied for the acting appointment of DCFO in May 2019, when the post was internally advertised.

Ramsaran said he was the longest-serving acting assistant CFO (ACFO), and since there was no confirmed officeholder in the ACFO office, he would have had the most experience and would have qualified to act in the position of DCFO.

His claim said no interviews were held for the acting appointment of DCFO, but he was told he was not considered suitable for the acting appointment, since he had not completed the brigade command course.

An officer junior to him was appointed to act.

Ramsaran said he completed the brigade command course at the Fire Service College Morton in Marsh, United Kingdom, on August 23, 2019, but his junior was given a fifth acting appointment until December 2020.

The Appeal Court’s ruling, written by Pemberton, agreed with the judge’s decision to separate Ramsaran’s challenge into two periods, and her finding that he failed to prove he was treated unfairly for the period before August 2019 after he completed the UK course.

However, she disagreed with the judge’s finding on the failure to appoint him to act after he completed the certification course, since, according to the evidence from the CFO, Ramsaran still did not have sufficient experience for the acting position.

“The appellants were within their right to refuse to consider SR. There was nothing unfair about this decision.”

Pemberton also disagreed with the judge’s finding on Regulation 9 of the Fire Service (Terms and Conditions of Employment) Regulations which sets out the requirements for the appointment of firemen in the first division.

Mohammed found that according to that regulation, Ramsaran, by August 2019, did meet the experience requirement to be considered to act as DCFO, because he had previously acted as an assistant divisional fire officer, divisional fire officer and ACFO.

However, Pemberton said, “To use the regulation in this way, to alter the terms of the substantive act, was a clear error of law made by the trial judge...

“I cannot agree that the second appellant’s (the commission's) decision not to consider SR for preferment was illegal, irrational or unfair since SR did not meet the threshold requirements for eligibility for consideration when there were other officers who by SR’s own evidence had clearly done so.

“The appellants were within their right to refuse to consider SR. There was nothing unfair about this decision.”

She said although Ramsaran met the academic-qualifications criteria, he did not meet the criteria for nature and length of service, and therefore was not eligible to be considered for the acting position of ACFO.

Pemberton also noted that the fire service had moved away from seniority as the sole basis for acting appointments or promotions, but they could be used as a tie-breaker when there was more than one officer who met the eligibility criteria.

She also said Ramsaran could not rely on legitimate expectation, because he did not satisfy the eligibility criteria.

“A court cannot give and would not give life to an expectation if it means that a public authority will act outside of its statutory remit.”

She also ruled because there was no breach of the regulations so there were no breaches of Ramsaran’s rights.

The judge’s orders in Ramsaran’s favour, including orders for compensation, were set aside and he was ordered to pay the CFO, the commission's and the AG’s costs in the High Court and two-thirds of the appeal, as well as the costs for his unsuccessful cross-appeal.

Nadine Nabbie, Zara Smith, Nicol Yee-Fung, and Avaria Niles represented the CFO, the commission and the AG. Anand Ramlogan, SC, Jayanti Lutchmedial, Jared Jagroo and Natasha Bisram represented Ramsaran.