Presbyterian Board's lawsuit over hiring policy for primary teachers dismissed

THE High Court has dismissed the Presbyterian Board’s (PCTT) complaint against the Teaching Service Commission (TSC) over a decision to advertise vacancies for the position of Teacher I (Primary) in denominational schools.

Justice Westmin James held the commission acted lawfully in his decision delivered on March 10.

The PCTT had argued that the commission’s refusal to accept recommendations from the Presbyterian Primary Schools’ Board of Education (PPSBE) was unlawful and in violation of long-established practices under the 1960 Concordat.

The church sought judicial review of the TSC’s decision, claiming that the commission was required to approve its recommended candidates without requiring a competitive selection process.

The Catholic Education Board of Management was an interested party in the case since it also submitted recommendations to the ministry for filling vacancies in their schools.

The PBTT’s challenge came after the TSC failed to approve the boards’ recommendations and make the respective appointments.

The TSC’s new policy was premised on its views that the Public Service Commission Regulations required that denominational boards communicate to the ministry’s permanent secretary vacancies in their schools and in turn, the ministry would advertise the vacant offices after which it would then send all applications for the filling of the vacancies to the Director of Personnel along with any of the boards’ recommendations and comments.

However, the boards contended that the 1960 Concordat – a pre-Independence agreement between the government and heads of the various religious denominations – and the settled practice for their schools, applications were first made to them before they made their recommendations to the ministry and the TSC. They insisted the settled practice was constitutionally protected and the TSC’s reliance on the regulations must yield.

In his ruling, James found that the TSC was not bound to automatically accept recommendations from denominational boards. “Recommendations are advisory, not binding as it is not ‘on the advice of.’

“Neither the regulations nor the Concordat recognise a constitutional right to automatic acceptance of recommendations.

“This would undermine the discretion of the Teaching Service Commission and render regulatory safeguards meaningless.

“To elevate usual acceptance of recommendations is a constitutional right would do injustice to the Constitution, the Concordat and the regulations,” the judge said.

He also held that the TSC retained the discretion to ensure fair and transparent hiring practices.

In deciding the case, James noted that the TSC’s 2021 policy requiring vacancies to be publicly advertised was consistent with both the Concordat and the regulations.

He also rejected the argument that the TSC’s policy was ultra vires, affirming that it sought to ensure equal access to employment opportunities for all qualified candidates and ruled there was no constitutional or legal obligation for the commission to follow past practices if they contradicted public service regulations.

“In the present case, the practice as submitted by the claimant and interested party would not allow for all applications examined by the boards to be forwarded to the commission with their recommendations as detailed in the Concordat and would rather totally remove the right of appointment from the Public Service Commission making them a rubber stamp to their recommendation.

“It is clear from the wording of the regulations that all vacancies should be communicated to the commission and be advertised either within or outside the Teaching Service.

“It is also clear that the commission should be given all the applications to fill the vacancies except in the case where the vacancies are being filled from persons already in the service. It is also clear from the wording that the commission should satisfy itself that regulation 18 has been complied with.

“The claimant and interested party’s practice would see the defendant not only advertising the positions but also not being able to consider all potential candidates.”

He also found there was no basis to hold that the TSC’s decision to advertise vacancies was ultra vires or an improper exercise of discretion.

Despite the ruling, James acknowledged the significance of denominational schools in maintaining their religious character. He suggested that if denominational boards sought changes to the current process, they should engage in discussions with the government rather than relying on judicial intervention.

“This court acknowledges the significance of preserving the denominational character of assisted schools and affirms that the Concordat—as agreed between the GORTT and the Denominational Boards – along with the corresponding regulations, serves as the framework ensuring its continued implementation.

“However, if the Denominational Boards seek to alter this arrangement, such changes should be pursued through good faith negotiations with the GORTT, followed by the necessary legislative and constitutional amendments.

“This court does not believe that this can be achieved through judicial action that would circumvent the established legal and constitutional processes.”

The judge further noted that the matter would also affect other denominational boards and those who wished to be a part of the teaching service, especially those who wished to be teachers in assisted schools.

In support of its lawsuit, the PBTT had noted that there were 49 vacancies for the position of Teacher 1 (Primary) across its 26 schools which, it said had hindered student enrollment and affected the delivery of quality education – a standard for which, they said, Presbyterian schools were known.

No costs were awarded against the PBTT owing to the public interest nature of the case.

Attorneys Darryl Allahar, Aaron Mahabir and Matthew Allahar represented the PBTT. Russell Martineau, SC, Coreen Findley, Raquel Le Blanc and Murvani Ojah Maharaj represented the TSC.

Appearing for the Catholic Board were Ian Benjamin, SC, Kerwyn Garcia, SC, Clay Hackett and Nalini Jagnarine.