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Commissioner acted unlawfully in sacking officer, court rules

Unlawful: a judge has ruled that Darrin Simons, the Commissioner of Police, acted unlawfully in dismissing a police officer (File photograph)

Darrin Simons, the Commissioner of Police, acted unlawfully when he dismissed a police constable who was still on probation, a judge has ruled.

Marcus Uddin joined the Bermuda Police Service as a trainee officer in September 2018 and was to serve three years of probation.

At the end of May 2021, Mr Uddin was placed on a three-month “informal action plan” by his supervisors — Sergeant Caleb Jean Pierre and Superintendent Na’imah Astwood — who said he needed to improve on some aspects of his performance if he was to successfully complete his probation.

But just two weeks into the programme, the officer received a “potential discharge” letter from Mr Simons, who at that time was the Acting Commissioner of Police, giving him just 72 hours to provide reasons why he should not be dismissed.

A month later, Mr Uddin received a second letter from Mr Simons which concluded: “At the end of the probation period you are unlikely to become an effective and efficient member of the Bermuda Police Service and so we are discharging you from the service.”

At a hearing in January, attorney Victoria Greening of Resolution Chambers, representing Mr Uddin, argued that his dismissal was “unfair, unreasonable, and a breach of natural justice”.

Ms Greening said her client should have completed the action plan before any decision on his suitability for the force was made.

It was also pointed out that, one month into the action plan, Mr Uddin was told that his performance had improved and he was “on track” to complete his probation.

Ms Greening told the court: “If the commissioner had decided that he was going to dismiss my client, he may have been able to do that following the completion of the management action plan without reason — I accept that that was in the realms of his power.

“But he didn’t wait and so now my client will never know the outcome of the management plan that he was engaging with successfully.

“He understood that he would be given time to improve, but he was never given that time — because the commissioner interfered.”

Brian Moodie, for the Attorney-General’s Chambers, argued that the commissioner had every right to dismiss Mr Uddin — whatever the reason — because he was still on probation.

But in a ruling handed down yesterday, Narinder Hargun, the Chief Justice, rejected that argument.

Mr Justice Hargun wrote: “In the circumstances, the court has come to the clear view that the respondent did not act fairly in discharging the applicant.

“The performance deficiencies which were noted in the correspondence from the respondent had already been noted by the applicant’s supervisors and at the instructions of Superintendent Astwood, [Sergeant] Jean Pierre had agreed with the applicant that those performance issues would be the subject of a three month informal management action plan ending on August 27, 2021.

“At the end of the first monthly meeting on June 27, 2021, the applicant was told by [Sergeant] Jean Pierre that his performance was improving and that he was ‘on track’.

“In the circumstances, the duty of fairness demanded that the applicant’s employment would not be terminated on the same grounds which formed the basis of the informal management action plan until its expiry on August 27, 2021.”

Mr Justice Hargun implied that the commissioner could have fired Mr Uddin at the end of the management action plan, but to do so beforehand “was in breach of the duty of fairness and therefore unlawful”.

A further hearing will be held to hear claims for damages and costs from Mr Uddin.

Last night, a jubilant Mr Uddin said that any award for compensation should be paid by Mr Simons rather than the taxpayer.

Mr Uddin, who is no longer a police officer, told The Royal Gazette: “I am delighted that the court ruled in my favour, on a decision I knew from the beginning was unfair and unlawful on the part of the commissioner.

“It is my hope that the Governor, once she is aware of this ruling, should institute disciplinary proceedings against the Commissioner of Police for his unlawful act as he ought to have known and I in fact believe he knew it was wrong.

“But the Commissioner of Police has a preconceived notion that he has the power to do whatever he likes without fear of consequences, which is a wrong characteristic for a Commissioner of Police.

“His unlawful actions will cost the taxpayer — a cost that should come out of his own pocket.”

Responding to the ruling, Mr Simons said: “The Bermuda Police Service is grateful for the clarity the decision of the courts provides.

“The learned Chief Justice was very clear that his ruling did not express a view on the grounds for dismissal, only that the process used was unfair. We will review our processes to ensure this does not happen again.

“As Commissioner of Police, I am responsible to ensure that only those probationers who are likely to become efficient members of the Bermuda Police Service are allowed the privilege of serving as a police officer.”