Judge orders $$$ for cops in unlawful promotion process

JUST under 100 police constables who took legal action over the promotion exercise fiasco in 2023 must be compensated for their distress over a move to modify the performance appraisal criteria used for promotions.

Justice Westmin James made the order in a ruling against the Police Commissioner and the Promotions Advisory Board (PAB) on October 29.

The officers challenged a departmental order issued by the Office of the Police Commissioner on August 4, 2023, and the failure of the PAB to sit and consider promotions every three months.

They contended they had a legitimate expectation that they would be assessed on previous criteria for performance appraisals, which existed when they successfully wrote promotion examinations.

They also contended that the board’s delay in performing its duties hampered their chances of being promoted as they had to compete with a substantially larger pool of applicants for a small number of vacancies.

They sought declarations that the policy change was illegal, irrational, procedurally improper, and void and another declaring that there had been undue delay by the board.

James granted those declarations. He also ordered the PAB to compile and submit to the commissioner a revised order of merit list using the proper criteria to reflect the officers’ proper ranking in three months.

James said the list must be published in a department order so the officers can be properly ranked for when there are other vacancies in the police service.

In his ruling, James said the amendment undermined the officers’ legitimate expectations.

“The principle of fairness dictates that procedural rules should remain consistent throughout an assessment process…”

He added, “The use of disputed criteria in Departmental Order 93 of years of service was wrongful in the first place…Years of service relate primarily to seniority, not to an officer's actual performance in their role.

“Seniority reflects the length of time an officer has served but does not necessarily indicate their level of competence or effectiveness in their duties during the assessment period.

“Performance appraisals, on the other hand, are designed to evaluate an officer's work over a specific time frame, focusing on their skills, achievements, and overall contribution during that period.”

He said by assigning points for years of service, the commissioner and the PAB “conflated seniority with performance.”

“This procedural breach further compromised their fair opportunity for advancement, making the delay not only unreasonable but also legally flawed,” he added.

James also said the 14-year delay in calling the officers for their final interviews was “clearly unreasonable and unjustifiable.”

In their lawsuit, the officers complained a large number of them completed the promotions examinations as far back as 2011, but they had never been assessed by the PAB nor had they been included on the order of merit list. Others sat the sergeant examinations but had not been promoted to corporal and some of them were invited to the PAB interviews a decade after they were successful in their examinations. They have since been interviewed and promoted.

James said the argument that the costs and number of constables involved contributed to the delay was “inadequate.”

“As more time passes, additional constables will qualify, exacerbating both the costs and the number of individuals affected.

“This prolonged delay only worsens the situation, with more officers becoming eligible and a growing number facing prejudice due to the stalled promotion process.

“The delay is particularly harmful to candidates, as it limits their ability to advance to higher ranks and significantly impacts their career trajectories. This prejudice cannot be overlooked.

“I agree with the claimants that the court must acknowledge the suboptimal state of affairs.”

In considering an appropriate remedy, the judge said if the promotions were invalidated, it would affect hundreds of officers.

“The court is in a tight spot.”

He said failing to rectify wrongful promotions would disenfranchise officers who should have been promoted but were not resulting in them losing seniority and losing out on higher acting positions.

“It also affects the morale of the officers.”

James rationalised that setting aside the promotion process would affect the rights of officers who were not part of the lawsuit and would “not be conducive to good administration.”

He also said it would be impractical if there were no available vacancies. He also decided against ordering a re-evaluation of the order of merit list and retroactively promoting officers.

However, James noted, “The court does recognise that this was caused by the defendant engaging in the promotion exercise knowing fully well that this could be the outcome.

“However, while the court does not condone the original error, that error ought not to be used as a basis for creating inequity, or disquiet in the rest of the service.

“This state of confusion and inconsistency that a retroactive promotion will create is contrary to good administration.

“The court will however direct that a revised order of merit list should be compiled, using the proper criteria, and excluding those officers already promoted. “This list would rank the claimants correctly for future promotions.

“The claimants who were unjustly denied promotion should also be awarded damages to compensate for their loss of opportunity and seniority.

“This remedy, while imperfect, would address the harm caused by the original error.

“The court is of the belief that there is no perfect solution to this unfortunate series of events and seeks to fashion the best remedy in the circumstances,” James acknowledged.

Giving evidence in the matter were several of the affected police officers. Also giving evidence were then-acting Commissioner McDonald Jacob, current commissioner Erla Harewood-Christopher in her capacity as DCP Administration and Operational Support and then chair of the PAB and then-acting DCP Ramnarine Samaroo.

Attorneys Jagdeo Singh, Leon Kalicharan, Terry Boyer, Lana Lakhan, Karina Singh, Vashisht Seepersad, and Desiree Sankar represented the police officers.

Vanessa Gopaul, Alana Rivas, and Faith Walke represented the commissioner and the PAB who were ordered to pay the claimant’s costs to be assessed by a master.