Campbell v the Attorney General

JurisdictionCaribbean States
CourtCaribbean Court of Justice
JudgeWit, J.A.
Judgment Date03 Apr 2009
Docket NumberCCJ Appeal No. CV 2 of 2008; Civil Appeal No 34 of 1998

Caribbean Court of Justice

Nelson, J.A.; Saunders, J.A.; Bernard, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No. CV 2 of 2008; Civil Appeal No 34 of 1998

Campbell
and
The Attorney General
Appearances:

Mr Leslie F Haynes QC, Mr Deighton Kingsley Rawlins, Mr Kwame Deighton Rawlins and Ms Efia Jamila Rawlins for the appellant.

Ms Jennifer C Edwards QC, Ms Donna K Braithwaite and Ms Roslind R Jordon for the respondent.

Constitution - Interpretation — Section 94 of the Constitution — Power to remove a public officer — Whether appellant's removal was unconstitutional.

Industrial law - Contract of service — Termination — Abolition of the public office of the appellant — Whether appellant entitled to damages for breach of contract.

THE KEY ISSUES
Wit, J.A.
1

This appeal from the Court of Appeal of Barbados, pursuant to leave granted by it, raises important issues as to the rights of senior civil servants and requires consideration of “the dual dimension of the public employment relationship” to which we adverted in Edwards v. Attorney General of Guyana [2008] CCJ 10 (AJ) at [15].

2

When he held the office of Chief Electrical Engineer, Mr Winton Campbell, “the appellant”, was one of many civil servants holding a public office which could be abolished by a statutory Order laid before the Barbados Parliament and approved by a resolution of each House (as provided for by section 2 of the Civil Establishment Act 1948, Cap. 21).

3

On behalf of the Attorney General of Barbados, “the Respondent”, it was argued that the inevitable consequence of the statutory abolition in good faith of a unique public office was a retirement from that then non-existent office, leaving the former office holder only with the accrued pension rights he had under the terms of his appointment to that office (unless appointed to a new office in the public service so as to continue his pensionable public service).

4

On behalf of the appellant, it was argued that, despite abolition of his office of Chief Electrical Engineer by statutory Order, he could only be removed from the public service under section 94 of the Constitution by the Governor General, acting in accordance with the advice of the Public Service Commission: moreover, the Governor-General could not act upon such advice without affording him the right to refer the matter to the Barbados Privy Council under section 98. Failure to comply with section 94 had meant that the appellant remained in the public service and was entitled to receive the emoluments that had been attached to the office of Chief Electrical Engineer. Alternatively, he was entitled to damages, including exemplary damages.

THE FACTUAL BACKGROUND
5

By letter of 10 April, 1987, the appellant was informed that the Governor General acting in accordance with the advice of the Public Service Commission – and so complying with section 94 of the Constitution – had appointed him to the post of Electrical Engineer in the Electrical Engineering Department with effect from 2 June 1987 at the rate of $45,888 per annum, subject to his being passed medically fit. The principal terms and conditions were as follows:

  • “(a) You will be subject to the provisions of the Service Commissions (Public Service) Regulations, 1978 (as amended from time to time) and to such other Regulations, Statutory Rules, General Orders and administrative directives as may be in force in the Public Service;

  • (b) You are required to complete and submit the enclosed form of Declaration of Health to me by 1987-05-08. In this connection, you may be required at the discretion of the Chief Medical Officer to undergo a medical examination (Order No. 2.7 of the General Orders, 1970);

  • (c) Subject to the exigencies of the Public Service, you will be entitled to the grant of leave in accordance with the provisions of Chapter V of the General Orders 1970;

  • (d) Your appointment is pensionable in accordance with the provisions of the Pension Act, 1947, Cap. 25, as amended by the Pensions (Miscellaneous Provisions) Act, 1985–18.”

6

This appointment was to provide for the carrying out of the key tasks required of the “Electrical Engineer” by the Electricity Act, 1936, Cap 277. When the appellant took up this important office in June 1987 it happened to be established under the Civil Establishment (General) Order 1987 (SI 1987 No. 52) pursuant to powers conferred by the Civil Establishment Act 1948. The Civil Establishment (General) (Amendment) No.2 Order 1987 ( SI 1987 No. 147) then amended the earlier Order: “Substitute the words ‘S3’ for the words S5 appearing in the column headed ‘Code Number’ opposite the office ‘Electrical Engineer’.” The Civil Establishment (General) (Amendment) Order 1988 (SI 1988 No. 50) further amended the earlier Order: “Delete all the words appearing under Electrical Inspection Department and substitute ‘1. Chief Electrical Engineer S3 … 1 [one] … 2. Senior Electrical Engineer S7 … 1 [one].” The reference in the Electricity Act to “Electrical Engineer” was then construed as a reference to “Chief Electrical Engineer” pursuant to a Notice under section 20(3) of the Interpretation Act, Cap 1, published in the Official Gazette on 22 August 1988.

7

It appears that the Civil Establishment (General) Order, 1987, as amended, was then replaced by the Civil Establishment (General) Order 1990 which continued the offices of one Chief Electrical Engineer S3 and one Senior Electrical Engineer S7. However, the Civil Establishment (General) (Amendment) Order 1991 (SI 1991 No. 170) required deletion of those offices, substituting for them “1. Chief Electrical Officer S4 … 1 [one] … 2. Deputy Chief Electrical Officer S7 … 1 [one].”

8

This Order, made pursuant to the powers conferred on the Minister responsible for the Public Service, came into operation on 1st April, 1992 by virtue of the Civil Establishment (General) Notice 1992 (SI 1992 No. 25). It had the effect of abolishing the appellant's office of Chief Electrical Engineer from that date, as pointed out to the appellant by the Chief Personnel Officer's letter of 8th April, 1992 to him. The letter reads as follows:

“I am directed to refer to my letter No. PH. 224/156 of 1991-11-18 informing you of a proposal to re-organise the Electrical Engineering Department. The reorganisation has been finalised and the post of Chief Electrical Engineer held by you was abolished with effect from 1992-04-01. Arrangements will be made for the payment to you of any benefits for which you may be eligible as a result of the abolition of the post of Chief Electrical Engineer.”

9

This state of affairs came about after complaints both from members of the Electrical Inspection Department headed by the appellant and from the appellant himself about lack of collaboration and co-operation within the Department. This led the Head of the Civil Service in April 1989 to commission an inquiry to consider the operations of the Department and staff relations therein.

10

As a result of the inquiry a report was submitted to the Government in August 1989. A meeting was held between senior officials in the Public Service and the authors of the report. It was proposed that the Department be reorganised and certain functions be transferred to the Traffic Section of the Ministry of Transport and Works. It was further proposed that this Ministry should set up a unit to undertake responsibility for providing for electrical design services so as to avoid the need for engaging expensive private electrical consultants. It was agreed that, subject to the appellant's approval, he would be seconded from his post to head this unit.

11

On 18th September, 1989, the Permanent Secretary, Ministry of the Civil Service wrote to the appellant.

“As promised at the meeting held today among yourself, the Chief Personnel Officer and myself, I refer for your information and comments, a copy of the report on the enquiry into the Electrical Inspection Department which was conducted by Mr. F.A. Parris and Mr. Rudi Webster.

I am also directed to inform you that in keeping with the suggestion at paragraph 17(1) of the report it is proposed, as a temporary measure only, to seek to utilize your services on the following assignments which are most urgent to the planning requirements of the construction and development programmes of the Government:–

– to provide electrical design services associated with major construction and maintenance projects;

– to provide professional services to the Ministry of Transport and Works on design and operational aspects of street lighting, traffic lights and signals and the metering for traffic control.

Included in the construction projects which are on-going or contemplated are the West Wing of the Parliament Buildings, the proposed new Marine House Complex, the Headquarters Building for the Fisheries Department and the Vendors Mall in Bridgetown. It is felt that the services required in this connection will last for up to two years.

Your comments on the proposal in the above paragraphs in relation to the required support staff, equipment and other facilities will also be appreciated. You will, doubtlessly, wish to comment on the entire proposal as it relates to you personally.

Above all I wish to assure you that these proposals are made not only to avoid am exacerbation in the relationships at the Government Electrical Inspection Department but more particularly in the interest of the speedy fulfilment of Government's commitment to certain projects over the next two years.

Your early response to this letter, if possible by the end of September, would be greatly appreciated.”

12

On 3rd October, 1989, the appellant replied:

“Thank you for your letter MP 6055 Vol. III dated 1989-09-18 and your offer for me to provide electrical design and other professional services to the Government programmes you outlined.

Your attention must be drawn to the Electricity Act, Cap. 277, section 3(d)...

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