Scores of high-level Jamaican civil servants have been separated from the public sector over the years, their hapless cries of injustice gone unnoticed. Many take their separation letters and often paltry settlements and go home to writhe in agonising, angry silence, believing that no good could come of a bloody public spectacle.

But ever so often comes a fighter. Deborah Patrick-Gardner, who appointed legal gladiator Hugh Wildman to represent her, has decided not to accept her forced retirement from the public service, where she was principal executive officer of the now disbanded Court Management Services.

Last week, Patrick-Gardner got exciting news that Supreme Court Justice Bryan Sykes had granted her leave to apply for a judicial review of the retirement decision. Just before that, the court had granted her application for an injunction to stay the retirement until the case could be heard.

The case is expected to embolden the many civil servants watching its outcome before wading in themselves. The Jamaica Observer was told of several outstanding lawsuits filed against permanent secretaries and the Public Service Commission (PSC) which are likely to emerge soon.

Justice Sykes gave his reasons for granting the leave for judicial review on July 8, 2016. In the first of this two-part article, he said among other things: “…The discussion within the PSC had shifted from seeking to mollify Mrs Patrick-Gardner regarding her (a) apparent demotion; (b) reporting to a subordinate and (c) not being able to resume her substantive post to separating Mrs Patrick-Gardner from her job through the medium of retirement.

“In effect, what may be inferred is what Mrs Patrick-Gardner was told would be discussed by the PSC became a different kind of discussion — it became a job separation discussion. Yet not a word was breathed to Mrs Patrick-Gardner. No word to Mrs Patrick-Gardner in March. No word to Mrs Patrick-Gardner in April. No word to Mrs Patrick-Gardner until a letter dated May 20, 2016 told her she would be retired and she would be sent on pre-retirement leave as of June 1, 2016. Mrs Patrick-Gardner did not get the letter until May 24, 2016.

“She now had seven days to prepare for her job separation on the ground of retirement — something that was not on the cards having regard to the discussions between herself and the PSC from September 2015 to February 15, 2016. Was this process fair? That is the question. Most fair-minded persons would think that something is not quite right, given the sequence of events as outlined by Mrs Patrick-Gardner.”

Following is part one of a lightly edited version of Justice Sykes’ ruling:

The context

[1] February 24, 2016 was the day appointed by the Jamaica Gazette for amendment to the Judicature (Supreme Court) Act to come into effect. The amendment established an entity known as the Court Administration Division (‘CAD’). The amendment did other things such as adding registrars and deputy registrars, but those other things are irrelevant to the present proceedings.

[2] The statute states expressly that the CAD ‘shall be under the direction and control of the chief justice’. The CAD is to be headed by a person styled the director of court administration (‘DCA’) and that person ‘shall be responsible for the day-to-day supervision of the work and staff of the division.’ The CDA is permitted to employ persons on ‘terms and conditions as may be approved by and with the authority of the governor-general acting on the advice of the Public Service Commission.’

[3] According to the memorandum of objects and reasons of the Bill, a decision was taken to establish the CAD ‘which will supersede and replace the Court Management Services, which was initially established as an administrative arrangement, and which shall be responsible for the provision of general administration and management services in respect of all the courts of Jamaica.’

[4] What all this means is that, before the statute was passed, there was an administrative entity known as the Court Management Service (‘CMS’) headed by a principal executive officer (‘PEO’). Mrs Patrick-Gardner was the first person appointed as PEO for CMS by letter dated September 28, 2011. She appears to be the last as well. As will be seen below, a decision was taken to retire Mrs Patrick-Gardner. This decision and its implementation have ignited this application.

[5] For the respondents to this application, Mrs Jacqueline Mendez, acting chief personnel officer (‘CPO’), assigned to the Public Service Commission (‘PSC’), swore in her affidavit that the duties which were carried out by the PEO would now be carried out by the DCA once the Act came into force and someone was appointed to that post. When this decision was made there was a ticklish question: What to do about Mrs Patrick-Gardner?

[6] Mrs Mendez informs us that the PSC took the view that Mrs Patrick-Gardner ought to be retired from the public service on the ground of reorganisation in accordance with section 6 (1) (iv) of the Pensions Act. It is this decision and its implementation that has led to this application for leave to apply for judicial review.

Mrs Patrick Gardner’s complaint

[7] Mrs Patrick-Gardner states that after her appointment as PEO the Chief Justice suggested to her that she should pursue legal training in order to be able to discharge her functions better. She acted upon this suggestion and enrolled in the Bachelor of Laws programme at the University of the West Indies. She took up this course in September 2013.

[8] In order for her to complete this course of training she was granted study leave for 36 months — two years with pay and one year without pay. By September 2015 she completed the degree. Apparently she was a direct entrant which means that she had a prior degree, which led the Faculty of Law to conclude that she was able to complete the programme in three (two) years instead of the usual three. She did exceptionally well by taking a first-class honours.

[9] She states that on September 25, 2015 she reported for work at her office at CMS but found that her temporary successor was still in physical occupation of the office.

Mrs Mendez’s affidavit completes this portion of the narrative. Mrs Mendez states that Mrs Patrick-Gardner, by letter dated September 9, 2015, advised the then CPO, Dr Lois Parkes, that she had completed her studies early and had resumed duties on September 4, 2015. Mrs Patrick-Gardner proposed to Dr Parkes that she would proceed on recreational leave effective September 4, 2015. She also referred to an application for further paid leave to do the Certificate of Legal Education at the Norman Manley Law School.

[10] Mrs Mendez states that by letter dated September 24, 2015, Mrs Patrick-Gardner was told that 24 months’ leave was approved for her to pursue the course at the Norman Manley Law School but it would be without pay. The PSC, it appears, was not expecting Mrs Patrick Gardner to turn up for work after the approval of her leave to attend the Norman Manley Law School.

[11] The PSC’s expectation were dashed when Mrs Patrick-Gardner, by letter dated September 25, 2015, to the CPO advised that she had resumed duties but was unable to gain access to her office by the person who had been appointed to act in the post during Mrs Patrick-Gardner’s study leave to read for the Bachelor of Laws degree.

[12] By letter dated September 28, 2015, Mrs Patrick-Gardner wrote to the PSC complaining that she has not applied for unpaid study leave, but had requested ‘paid study leave’. She also stated that she would not be able to proceed on unpaid study leave. There were other issues raised which need not be addressed on this application.

[13] The PSC responded by sending two letters to Mrs Patrick-Gardner, both dated September 28, 2015. The first one contained some unexpected and perhaps unanticipated (news). She was told that on the recommendation of the chief justice she was redeployed to the Ministry of Justice with effect from September 29, 2015 until further order. This letter provided grist for Mr Wildman’s mill.

[14] The second letter told her that:

(a) She had been initially granted three years’ study leave which meant that she was not expected back until September 2016;

(b) She had applied for additional paid study leave to commence in September 2015 and the final decision was not taken on that application until September 24, 2015 which was the normal time frame for such decisions to be made;

(c) arrangements would not have (been put) in place in anticipation of her resumption on Friday, September 25, 2015; and

(d) A change in leadership at CMS was not appropriate at that point in time because CMS was involved in programmes vital for the reform of justice in Jamaica.

[15] It is not altogether surprising that Mrs Patrick-Gardner began to have misgivings about the recent developments. She was now in receipt of two letters from the PSC. One informing her that the chief justice had recommended that she be redeployed to the Ministry of Justice and another explaining that she was not expected back at work so soon and it was thought that a change in leadership at the CMS at that time was not desirable.

[16] On her arrival at the Ministry of Justice on September 29, 2015, Mrs Patrick-Gardner says two things happened. First she was placed in a post (SEG – 5) which she claims was two levels below her substantive appointment as PEO. Second, she was advised that she would be reporting (to) an officer who was her junior. It is not clear what her remuneration was at that time. From this two things are being alleged. The first is that she was, in fact, demoted. Second, all this took place without any hearing of any kind. It is not hard to see why she would be anxious about these developments.

[17] She was not happy with these turn of events and brought her discontent to the attention of Dr Parkes, who it is said undertook to raise these concerns with the PSC. There was a change in CPOs and Mrs Mendez took over that post. Mrs Patrick-Gardner and Mrs Mendez met on January 18, 2016, and the matters of concern to Mrs Patrick-Gardner were discussed.

[18] Mrs Patrick-Gardner wrote two letters to Mrs Mendez dated January 8 and 25, 2016 outlining her concerns, that is to say, one letter before the January 18 meeting and one after.

[19] Mrs Mendez, in a letter dated February 15, 2016, confirmed receiving letters dated January 8 and 25, 2016 from Mrs Patrick-Gardner and went on to say that the PSC had been made aware of her concerns and its decision would be communicated in due course.

[20] What is clear from this is that at no time was anyone suggesting that Mrs Patrick-Gardner should be separated from her job, whether by retirement or otherwise. What the PSC was ostensibly addressing were (a) her de facto removal from CMS; (b) her de facto demotion without a hearing of any kind and (c) her reporting to an officer two rungs below Mrs Patrick-Gardner’s appointed post.

[21] On the same February 15, 2016 when Mrs Mendez was assuring Mrs Patrick-Gardner that the PSC would be addressing her concerns, the legislature enacted an amendment to the Judicature (Supreme Court) Act which received the Governor General’s assent and by February 24, 2016 it came into force.

[22] Mrs Mendez’s affidavit does not say when the PSC shifted position from addressing Mrs Patrick-Gardner’s concerns to one of recommending that she be retired on the ground of reorganisation. The affidavit is silent on whether other alternatives were explored. Let (us) recall that Mrs Patrick-Gardner is asserting that she undertook the study of law because it was recommended to her that she should have this knowledge in order to enhance her ability to perform as PEO of CMS. She not only completed the degree but took first class honours. It does seem odd that the PSC changed positions from addressing her concerns to removal from the public service of a public servant who recently improved her qualifications. There is nothing in Mrs Mendez’s affidavit to suggest that Mrs Patrick-Gardner was performing unsatisfactorily prior to going off on study leave.

[23] Mrs Mendez states that the governor general accepted the recommendation of the PSC to retire Mrs Patrick-Gardner and on March 24, 2016 gave approval for her to be retired. The PSC, by letter dated May 19, 2016, wrote to the permanent secretary in the Ministry of Justice informing her that Mrs Patrick-Gardner was to be retired from the public service on the ground of reorganisation. Mrs Patrick-Gardner was told the same thing by letter dated May 20, 2016.

The submissions

[24] Mrs Foster Pusey, QC, opposed the application on three main grounds. Firstly, the decision to retire Mrs Patrick Gardner was on the ground of reorganisation. That involved no adverse view of her work and worth. The decision was arrived because a statute had been enacted which sought to replace CMS with the CAD. Secondly, the Public Service Regulations were silent on the matter and therefore no hearing of any kind was required and in any event it would be difficult to see what purpose any such hearing would serve since it was a decision by the legislature and not by a public servant. Thirdly, Mrs Mendez made no decision. The PSC made a recommendation and not a decision. The actual decision was made by the governor general.

[25] Mr Wildman submitted that having regard to the suggestion from the chief justice to Mrs Patrick-Gardner that she pursue legal studies and having regard to the fact that she was granted study leave, Mrs Patrick-Gardner had a legitimate expectation that she would not be retired once she successfully completed the course of study. Mr Wildman submitted that the PSC gave no reason for the change in its position in light of promises made by the CPO to take Mrs Patrick-Gardner’s concerns to the PSC and thereafter she would be told the outcome.

[26] Counsel contended that regulations 24 and 26 of the Public Service Regulations were applicable. Regulation 24 deals with persons at least 50 years old being asked to retire. In such circumstances the regulation actually states that the affected person shall be afforded an opportunity to make representations to the PSC. Regulation 26 speaks to retirement in the public interest.

Tomorrow: Why Patrick-Gardner was left in the dark