Blows for Defence Force as High Court orders retroactive promotion for warrant officer

A High Court judge ruled that the Defence Force (TTDF) unlawfully denied longtime service member Tracy Courtney a promotion to Warrant Officer Class I, ordering that she be elevated to the rank retroactive to January 5, 2024.

Justice Margaret Mohammed held that the TTDF applied an “irrational, unfair and unreasonable” promotion criterion, failed to conduct required annual performance appraisals, and deprived Courtney of equal treatment and due process. The court found the Defence Force’s actions breached sections 4 and 5 of the Constitution and frustrated Courtney’s legitimate expectation of promotion.

Courtney, a former Warrant Officer Class II with roughly 30 years of service in the Regiment, claimed she was repeatedly bypassed for promotion while junior colleagues advanced. She argued that the TTDF required two consecutive “very good” performance appraisals that had no legal basis and contradicted longstanding practice in which an overall “good” rating formed the efficiency standard for higher appointments. She also said that she was denied performance assessments from 2019 through 2024 and was never given reasons for the non-recommendations that stalled her career.

Justice Mohammed agreed that the Defence Force misapplied its standing orders, noting that the Commander of the Regiment’s 2023 directive to rely solely on two recent appraisals deviated from the institution’s established system of evaluating overall performance. The judge determined that this change was never justified and resulted in an “arbitrary” and unlawful denial of promotion.

“In my opinion, the instructions which were given from the Commander of the TTR in September 2023 were irrational, unfair and unreasonable as to use only the previous two performance appraisals prior to promotion, would mean that there is no need to conduct performance appraisals on an annual basis, but only to ensure that they were done for the two years preceding promotion.

“With such an unfair system, service personnel could choose, if the criteria is followed to the letter, not to attain high standards of performance in the previous years as it is only the two years prior to being promoted that will be considered.”

“In my opinion, by applying the wrong criteria in assessing the claimant for promotion to the rank of WO 1, the second defendant acted unlawfully as he did not understand the correct criteria in making the decision and in giving effect to it. The decision was also irrational and unreasonable as it defied logic to any sensible person to only apply the assessment of the claimant for two prior years and not for the overall period of assessment.”

The court also found that the TTDF failed to conduct annual appraisals, provided no lawful reason for those omissions, and assessed Courtney in 2022 despite her being on extended medical leave following a covid19 infection.

The judge held that the TTDF’s actions deprived Courtney of salary, benefits and seniority and violated her constitutional rights to property, protection of the law, and equality of treatment.

“In my opinion, the actions of the first and second defendants by not recommending the claimant for promotion were an arbitrary decision which deprived the claimant of earning a higher salary and terminal benefits. In those circumstances, those actions amounted to a breach of the claimant’s right to property under section 4(a) and her right under section 4(b) to the protection of the law. 31. The claimant’s right to equality of treatment under section 4(d) was also breached…”

Justice Mohammed ordered the Defence Force to promote Courtney to Warrant Officer Class I with effect from January 5, 2024, pay all outstanding salary and benefits, and compensate her with $50,000 in compensatory damages and $40,000 in vindicatory damages. The court also quashed the promotions of junior personnel who advanced ahead of her under the unlawful criteria and mandated that the TTDF bear her legal costs.

In her ruling, the judge was critical of the TTDF’s actions, noting, “There was a laissez-faire approach by not permitting the claimant to meet with the commander to voice her concerns.

“The claimant was a senior officer, yet she was not given that opportunity.

“Further, the defendants failed to comply with their duty of candour by refusing to provide information concerning the name of the Unit Commander of the claimant for the period 2022. “Indeed, even after reading the contents of the claimant’s claim and affidavits, the defendants were aware that the criteria were erroneous, yet they still proceeded to vigorously defend this claim, but not seek to remedy the injustice suffered by the claimant.”

Arden Williams and Mariah Ramrattan represented Courtney while Rachel Jacob, Vandana Ramadhar, Lianne Thomas and Dominique Bernard represented the Chief of Defence Staff, the Commanding Officer of the Regiment and the Attorney General.