Bid to end employment of Caribbean police officers judged ‘unfair’ by Appeal Court
The Police Commissioner's decision to get rid of five policemen from the Caribbean just two days before they were to become permanent officers with full pension rights was “conspicuously unfair”, according to the Court of Appeal.
A panel of three judges concluded that Commissioner Michael DeSilva breached a promise made by his predecessor to the men and failed to properly explain his reasons for not renewing their contracts.
Mr DeSilva's decision to get rid of the officers after almost ten years of service was quashed by the Supreme Court in June.
He appealed that ruling but the Court of Appeal upheld it on Friday and said Puisne Judge Ian Kawaley's findings in relation to the case were “unassailable”.
That means the officers Pc Romeo Allen, Detective Constable Emmerson Donald and Sergeant Courtney Williams, who are all from Jamaica, plus Pc Adrian George from Trinidad and Tobago and Pc Cletus Cyris from St Lucia can now become permanent, pensionable employees, as promised by former Commissioner George Jackson.
The men's lawyer Richard Horseman told
The Royal Gazette: “The officers are grateful for the court's careful consideration of this matter and they wish to thank Justice Kawaley and the Justices of the Court of the Appeal for the relief granted.
“The officers can now focus on their careers and put this matter behind them. They look forward to serving the people of Bermuda.”
Mr Horseman added: “I too am grateful for the decision of the Supreme Court and the Court of Appeal and I am happy for the men whose careers were at stake.
“As a result of the decision, the officers will now have the benefit of what was promised to them by the former Commissioner, namely permanent and pensionable employment.”
In rejecting Mr DeSilva's bid to have the judgement overturned, Court of Appeal Justice Scott Baker said the officers had a legitimate expectation they would become permanent officers on completing ten years of service on June 30, 2010.
They'd been offered such in writing by Mr Jackson and Bermuda Police Service's human resources manager in 2007.
But after Mr DeSilva was made Commissioner, he wrote to one of the officers in March 2010 to say his contract would end on June 28 that year. “I am not able to offer you further employment,” the letter said.
Mr Justice Baker said: “The letter of March 17, 2010, came out of the blue and was a considerable shock to all the respondents. Putting it at its very lowest, it was a very poor exercise in employment relations.”
He said Mr DeSilva failed to justify a claim that his decision was based on the officers' poor work performance.
“In no case was the respondent given any opportunity of answering the points taken into account against him. There could not be a plainer breach of natural justice.”
The Court of Appeal judge concluded: “The procedure adopted by the Commissioner of Police was not only in breach of the express promise made by his predecessor, it was conspicuously unfair.”
Acting Police Commissioner Mike Jackman said last night that Mr DeSilva and his senior command team were “not aware of the communications that underpinned the officers' expectation of permanent employment”.
“The decision by the present Commissioner not to offer further employment to the officers was made following a performance review and a review of their service records,” he said.
“Those records did not include the previous communications that gave rise to their expectation. The Bermuda Police Service is grateful for and respects the ruling given by the Court of Appeal.
“The decision not to offer further employment was not personally motivated and it therefore stands that the affected officers will continue to serve without fear of any prejudice or ill will. Senior management will meet with all of the officers to reiterate this.”
Mr Jackman added: “This was an important case and one that the Bermuda Police Service has learned from.
“The senior command team recognised that the existing performance appraisal system was old-fashioned and no longer fit-for-purpose.
“Commencing April 1, 2011, the Bermuda Police Service will implement a new computerised performance and development appraisal system that will provide a comprehensive and continuous evidence-based performance review for every officer up to the rank of superintendent.
“The implementation of this new appraisal system will support the commitment of the Commissioner and his management team to drive up performance across the service.”
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