Court orders retroactive promotion for discharged soldier

A former warrant officer with the Defence Force (TTDF) will be retroactively promoted to a higher rank, paid his salary arrears, allowances and emoluments for five years and be reimbursed for surgery he had to pay for out of pocket.

On November 1, Justice Margaret Mohammed ordered the State to reimburse Miguel Reyes $56,000 for his first surgery and promote him to the rank of warrant officer 1 (WO1), effective October 18, 2018.

He will also receive his salary arrears, allowances and emoluments owed to him from his retroactive promotion date to November 24, 2023, which would have been the date of his compulsory discharge from the army.

Reyes will also receive $200,000 in vindicatory damages for the four-year delay by the Chief of Defence Staff (CDS) in paying the TTDF’s portion of his second surgery, which resulted in his not being promoted because he was deemed medically unfit.

“In my view, an award is justified to demonstrate the court’s outrage of the CDS’s treatment of the claimant and more importantly to act as a deterrent for such further actions by the CDS with respect to officers,” Mohammed said in her ruling.

Reyes had sued the State for reimbursement of the costs of his two operations after he was diagnosed with anterior cervical compression (a condition that occurs when pressure builds up on the spinal cord or nerve roots in the neck). This diagnosis came after he was injured on the job between 2013 and 2014 and again in 2015.

After his first surgery in 2015, he began the process for the TTDF to cover his medical costs. He did the same for reimbursement for the second surgery. Reyes said the TTDF agreed to pay for the first, but because of a delay, he paid out of his pocket and expected to be reimbursed.

However, the TTDF claimed the policy for reimbursement of medical expenses was not applicable in 2015.

Mohammed said the TTDF did not provide evidence of the policy for reimbursement of medical expenses in 2015. She also said the State failed to rebut Reyes’ evidence that a senior officer told him of the procedure for reimbursement.

“In my opinion, the claimant followed the procedure which existed prior to December 2017 for the reimbursement of the expenses for the first surgery.”

She said this resulted in breaches of his rights.

She dismissed his claim for partial payment for his second surgery, since the evidence showed it sent cheques to the relevant parties, so the “CDS was not liable to pay any additional costs for the second surgery.”

On the failure to promote him, Mohammed said a recommendation was made in 2020, but a performance appraisal in May 2023 said he was not elevated because of his medical condition, “as he was physically incapacitated.”

The judge said, “Notably absent from this matter was any evidence from the person who was CDS at the material time setting out his reasons for not promoting the claimant to the rank of WO I.

“There was also no explanation for his failure to do so.

“In my opinion, the only credible reason that the claimant was not promoted to the rank of WO I was due to his medical condition and not the other reasons of there being no vacancy or the claimant had not completed the warrant officers’ course.”

She said the exhibits showed there were vacancies, as there was a constant promotion of officers in the TTDF.

“In my opinion, the only reason the claimant was not promoted to the rank of WO I was due to his medical condition which persisted due to the delay by the CDS in paying its portion for the surgery during the period 2017-2021.”

Although she did not rule in favour of his argument on his second surgery, Mohammed held that owing to the delay in paying, Reyes “medical condition persisted” and this was why he was not promoted.

She also ruled the CDS’s reason for not promoting him because there was no vacancy and the TTDF’s claim that there was a policy for all service members to complete a warrant officers’ course were “arbitrary.”

“There was no evidence of any document which showed the date this policy was introduced and communicated to the officers.”

“In those circumstances, the CDS’s reason for not promoting the claimant on the basis of lack of medical fitness was not proportionate.”

Another aspect of Reyes’ lawsuit which did not find favour with the judge was his complaint that the CDS’s failure to pay for his second surgery led to his being unable to proceed to resettlement training, as it required him to be fit.

She also did not find his right to a fair hearing was breached by the TTDF’s failure to respond to his enquiries on the payment for the second surgery.

Attorneys Arden Williams, Anthony Moore and Mariah Ramrattan represented Reyes. Keisha Prosper, Zara Smith, Celine Moosai and Chantelle Le Gall represented the State.