Celena McDonald v The Public Service Commission

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (Civil Division) SAINT VINCENT AND THE GRENADINES CLAIM NO. SVGHCV2023/0165 BETWEEN: CELENA MCDONALD Claimant AND THE PUBLIC SERVICE COMMISSION Defendant Before: The Hon. Mde. Cybelle Cenac-Dantes (Ag.) Judge of the High Court Counsel on Record: Shirlann Barnwell with Jomo Thomas counsel for the claimant, Tonya DaSilva led by Senior Counsel Douglas Mendes via zoom counsel for the defendant ---------------------------------------- 2025: 18 March 30 April (final submissions) 4 December ---------------------------------------- DECISION ON THE PAPERS Introduction and Background [ 1 ]. Cenac-Dantes, J.: This is a claim for judicial review brought by the Claimant, Ms. Celena Mc Donald, pursuant to Part 56 of the Civil Procedure Rules 2023. The claim is directed against the Public Service Commission (“the PSC”) and concerns the legality of two decisions made by the PSC in relation to appointments within the Parliament Department of the Government of Saint Vincent and the Grenadines. [ 2 ]. The impugned decisions are: (a) the appointment of Mrs. Deborah Alexander-Charles to the post of Clerk of the House of Assembly; and (b) the promotion and appointment of Mrs. Simone Williams-Huggins to the post of Deputy Clerk of the House of Assembly. [ 3 ]. The Claimant, a long-serving public officer who acted in both positions at various times and who contends that she was eligible for substantive promotion, challenges both appointments on the basis that the PSC failed to adhere to the constitutional and statutory requirements governing appointments in the public service. [ 4 ]. The claim is grounded upon alleged breaches of Regulation 18 and Regulation 19 of the Public Service Commission Regulations (2009 Revised Edition), which form part of the constitutional framework regulating the exercise of the Commission’s appointment and promotion functions. [ 5 ]. The Claimant contends that the PSC acted: (a) in breach of Regulation 18, by failing to advertise the vacancies or otherwise give proper notice of the posts, thereby denying eligible officers, including the Claimant, a fair opportunity to be considered; (b) in breach of Regulation 19, by failing to properly assess the statutory criteria of seniority, experience, educational qualifications, merit, ability, and relative efficiency; (c) unreasonably, by taking into account irrelevant considerations, such as the possession of a law degree and failing to consider relevant ones; (d) in a procedurally improper and unfair manner, with the result that the Claimant was unlawfully excluded from consideration for either post; and (e) in a manner giving rise to apparent bias, particularly in the context of the Commission’s refusal to afford transparency in the selection process. [ 6 ]. On these bases, the Claimant seeks: (i) Declarations that the appointments of Mrs. Alexander-Charles and Mrs. Williams-Huggins were unlawful and null and void; (ii) Declarations that the PSC’s failure to advertise the posts violated Regulation 18 and the principles of transparency and fairness; (iii) Declarations that the PSC failed to apply the mandatory criteria prescribed by Regulation 19; and (iv) Orders of certiorari to quash both appointments. [ 7 ]. The Defendant denies that it acted unlawfully, contending inter alia that the appointments were properly made in accordance with the Regulations, that there was no requirement to advertise the posts in the circumstances, and that the Claimant’s challenge suffers from procedural bars, including unreasonable delay, non-joinder of necessary parties, and the absence of prejudice. [ 8 ]. The matter proceeded to trial on the papers, with no cross-examination of witnesses, and was determined on the basis of the agreed statement of facts, witness statements, and written submissions filed by both parties. Preliminary Issues Objection to Portions of the Defendant’s Witness Statements [ 9 ]. The Claimant, in her written submissions filed on 28th August 2024, raised objections to portions of the witness statements filed on behalf of the Defendant, particularly those of Arlene Regisford-Sam and Stephen Williams, arguing that certain assertions ought to be struck out on the basis that they amounted to hearsay or otherwise lacked documentary substantiation. The Claimant contended that these statements represented conclusions or matters of opinion and did not comply with the evidentiary standards expected of witness statements in judicial review proceedings. [ 10 ]. Having considered the substance of the Claimant’s submissions, I do not accept that the impugned statements should be struck out. The appropriate stage for raising evidentiary objections, particularly of the nature advanced here, is at case management, not at the stage of final submissions. The record reveals that no application was made to strike out or exclude any part of the Defendant’s witness statements during the case management process, nor at any time thereafter. [ 11 ]. It is of further note that at the Pre-Trial Review held on 14 June 2024, both parties expressly agreed that the matter would proceed on the papers and that there would be no cross-examination of witnesses. While it is open to the Court to consider objections to the admissibility or weight of evidence even at a late stage, it is procedurally improper for a party, having foregone earlier opportunities for objection, and having consented to a decision on the written record to seek to challenge evidence in closing submissions. This is especially so where no cross-examination was undertaken, and where the Court had made provision, through prior directions for any such objections to be ventilated. [ 12 ]. Moreover, I am satisfied that the impugned portions of the witness statements, particularly those made by Ms. Arlene Regisford-Sam, the Chief Personnel Officer, who also sits ex officio as a member of the Public Service Commission, reflect facts within her personal knowledge and are admissible. Her witness statement is not based on second-hand accounts but arises from her institutional role and involvement in the matters under challenge. There is no merit to the contention that her evidence amounts to inadmissible hearsay or speculation. Scope of the Challenge under Regulation 18 [ 13 ]. The Defendant in its written submissions filed on 10th December 2024 contends that the Claimant’s pleaded case was confined to Regulation 18(1) only, and that the attempt in her submissions to rely on Regulation 18(2) amounts to an impermissible broadening of the claim beyond the fixed-date claim form and supporting evidence by way of witness statement. [ 14 ]. I do not accept the Defendant’s contention on this point. It is evident from the Fixed Date Claim Form filed on 11 October 2023, and the supporting witness statement of the Claimant, that the complaint was broadly framed as one concerning the PSC’s failure to advertise the posts of Clerk and Deputy Clerk and to conduct a transparent and fair selection process. The Claimant specifically pleads that the PSC violated “Regulation 18 of the Public Service Commission Regulations” without restriction to subsection (1). [ 15 ]. Further, the Agreed Statement of Facts and Issues filed on 28 March 2024 includes among the agreed issues for determination the question of whether “the PSC acted in breach of Regulation 18 by failing to advertise the vacancies for Clerk and Deputy Clerk of the House of Assembly” without limiting the scope to subsection (1). Both parties’ submissions also addressed the two-tiered structure of Regulation 18, with reference to Regulation 18(1) (which governs notice to internal candidates) and Regulation 18(2) (which governs when and how the PSC may advertise externally where no suitable internal candidates are available). [ 16 ]. On the whole of the record, I find that the challenge under Regulation 18 was not confined to subsection (1) but encompassed the entirety of the Regulation. The Defendant had ample opportunity to respond to this aspect of the case and did so in its written submissions. No prejudice arises from treating the challenge as having been made under both subsections of Regulation 18, and it would be inconsistent with the overriding objective to construe the pleadings unduly narrowly in the context of a Part 56 claim where the issues were clearly joined and canvassed in full. Issues for Determination [ 17 ]. In light of the pleadings, submissions, and the Agreed Statement of Facts and Issues filed by the parties, the questions for determination, as reframed by the Court, are as follows: (i) Whether the PSC acted in breach of Regulation 18 of the Public Service Regulations by failing to advertise the vacancies for Clerk and Deputy Clerk of the House of Assembly, and whether such failure renders the appointments unlawful. (ii) Whether the PSC acted in breach of Regulation 19 of the Public Service Regulations by failing to consider the proper criteria of merit, ability, and seniority when appointing Mrs. Alexander- Charles as Clerk and Mrs. Williams-Huggins as Deputy Clerk of the House of Assembly, or alternatively, failed to consider relevant factors in its decision. (iii) Whether the impugned decisions were unlawful on grounds of unreasonableness, procedural impropriety, or apparent bias, in that the PSC took into account irrelevant considerations, failed to take into account relevant considerations, or otherwise failed to conduct a fair and transparent process. While this ground does not appear expressly in the Fixed Date Claim Form or in the Agreed Statement of Issues, it has been raised and developed throughout the Claimant’s affidavit evidence, written submissions, and Reply submissions, and were addressed in substance by the Defendant in its own submissions. In particular, the Claimant contends that the PSC gave undue weight to factors such as possession of a law degree, an irrelevant consideration under the governing Regulations, and failed to properly assess statutory criteria such as seniority, merit, and experience. She further asserts that the process was tainted by procedural unfairness and apparent bias, resulting in her unlawful exclusion from meaningful consideration. Although not formally agreed as an issue between the parties, these arguments flow from the pleaded allegations of breach of Regulations 18 and 19, and are properly before the Court for consideration. The supervisory nature of judicial review permits the Court to evaluate the legality, rationality, and procedural propriety of administrative decisions, even where those aspects are not framed as standalone grounds but are integrally connected to the core statutory breaches alleged. (iv) Whether the discretionary bars to relief apply, namely: o Delay - whether there was unreasonable delay in bringing the proceedings; o Non-Joinder - whether the failure to join the appointees as parties is fatal to the claim; and o Prejudice - whether granting relief would cause prejudice to third parties or otherwise undermine good administration such that relief ought to be withheld. Legal Framework Governing Judicial Review [ 18 ]. The present claim is brought pursuant to Part 56 of the Civil Procedure Rules 2023, which governs applications for judicial review and other administrative orders. The jurisdiction conferred upon the Court under Part 56 is supervisory in nature, and not appellate. It is well established that judicial review does not involve a reconsideration of the merits of the administrative decision, but rather an assessment of the legality, rationality, and procedural propriety of the decision-making process. As stated in Council of Civil Service Unions v Minister for the Civil Service1, the focus is on the lawfulness of the process, not the correctness of the outcome. [ 19 ]. The grounds upon which the Court may intervene in the exercise of its supervisory jurisdiction are settled and may be summarised as follows: (i) Illegality, where the decision-maker has acted outside the scope of its statutory powers, misdirected itself in law, or failed to properly apply governing legal principles; (ii) Irrationality or unreasonableness, where the decision is so unreasonable that no reasonable authority could ever have reached it; and (iii) Procedural impropriety, where the process by which the decision was made was unfair, contrary to natural justice, or in breach of a prescribed procedure. [ 20 ]. It is also a well-recognised principle that remedies in judicial review are discretionary. The Court may decline to grant relief even where a ground of review is established, particularly in cases where: – there has been undue or inordinate delay in bringing the claim; – there has been a failure to join persons who would be adversely affected by the relief sought; or – the grant of relief would cause prejudice to third parties or otherwise disrupt good administration. [ 21 ]. These considerations are codified in CPR 56.4 and form part of the evaluative exercise undertaken by the Court in determining whether relief ought to be granted2. The Constitutional and Statutory Framework [ 22 ]. The Public Service Commission (“PSC”) is a constitutional body established under Chapter 2, Part II of the Constitution Order of Saint Vincent and the Grenadines 2009 Revised Edition. The PSC has the exclusive authority to appoint, promote, transfer, and discipline public officers, subject to the Constitution and the Public Service Regulations. [ 23 ]. The relevant provisions of the Public Service Regulations (2009 Revised Edition) for the purpose of this exercise are Regulations 18 and 19 which provide:

18.Advertisement of vacancies (1) The Chief Personnel Officer shall, when so directed by the Commission, by circular or by publication in the Gazette, give notices of vacancies, and any officer may make application in the prescribed form for appointment to any such vacancy. Such application shall be forwarded to the Chief Personnel Officer through the Head of Department and Permanent Secretary under whose authority the applicant is serving. (2) Where the Commission considers either that there is no suitable candidate already in the public service available for the filling of any vacancy or that, having regard to qualifications, experience and merit, it would be advantageous and in the best interest of the public service that the service of a person not already in the service be secured, the commission shall take such step (including advertisement of the existence of such vacancy) as it may think necessary for the filling of such vacancy.

19.Principles of selection for promotion (1) In considering the eligibility of officers for promotion, the Commission shall take into account the seniority, experience, educational qualifications, merit and ability together with relative efficiency of such officers and, in the event of an equality of efficiency of two or more officers, shall give consideration to the relative seniority of the officers available for promotion to the vacancy. (2) The Commission, in considering the eligibility of officers under Sub regulation (1), for appointment on promotion shall attach weight to – (a) seniority, where promotion is to an office that involves work of a routine nature; (b) merit and ability, where promotion is to an office that involves work of progressively greater and higher responsibility and initiative than is required for an office specified in paragraph (a) (3) In the performance of its functions under sub regulations (1) and (2), the Commission shall take into account as respects each officer – (a) his general fitness; (b) The position of his name on the seniority list; (c ) any special qualifications; (d) any special course of training that he may have undergone (whether at the expense of the government or otherwise); (e) the evaluation of his overall performance as reflected in annual confidential reports by any permanent secretary, head of department or other senior officer under whom the officer worked during his service; (f) any letters of commendation or special reports in respect of any special work done by the officer; (g) the duties of which he has had knowledge; (h) the duties of the officer for which he is a candidate; (i) any specific recommendation of the chief personnel officer, permanent secretary of head of department for filling the particular post; (j) any previous employment of his in the public service or otherwise; (k) any special reports for which the Commission may call; (l) his devotion to duty. (4) In addition to the requirements Prescribed in sub regulations one, two and three the Commission shall consider any specifications that may be required from time to time for appointment to the particular post. Case Law Guidance [ 24 ]. The parties placed before the Court a substantial body of authority. It is neither necessary nor desirable to recite each decision in this judgment. Nonetheless, I confirm that all authorities submitted were carefully considered and that the general principles distilled from them are well settled in judicial review and have guided the Court’s analysis of the issues. [ 25 ]. The Eastern Caribbean Court of Appeal in Tyrone Burke (Chief Personnel Officer) v Otto Sam3 reaffirmed the principle that decisions concerning public officers must be demonstrably authorised by the PSC, and that the Commission owes a continuing duty of candour to place before the Court all materials necessary to test the lawfulness of its decision. The absence of proper documentary record-keeping was held to justify adverse inferences against the public authority. [ 26 ]. In Henriques v Harding4, the Court emphasised that statutory preconditions to valid decision-making by the PSC must be strictly observed, and that even technical breaches can invalidate appointments if they undermine fairness or transparency. [ 27 ]. Similarly, in Rodney v Attorney General of Saint Lucia5, the High Court held that the PSC’s discretion is not unfettered; it must be exercised in accordance with the Regulations, and failure to apply the criteria of merit, ability and seniority amounted to unlawfulness. The Court underscored that fair competition and equal opportunity are essential hallmarks of a lawful appointment process. [ 28 ]. The common theme emerging from these authorities is that while the PSC enjoys a margin of discretion, it is constrained by the constitutional and statutory framework. Where it fails to advertise vacancies as required, or where it bypasses merit and seniority without reason, its decision is susceptible to being quashed as unlawful. [ 29 ]. The authorities also remind us that judicial review remedies are not automatic. The Court must balance the rule of law against the need for stability in public administration, and may withhold relief if, to grant it, would cause disproportionate disruption or prejudice to third parties. SSUE 1: whether the PSC acted in breach of Regulation 18 Application of Regulation 18 to the Facts [ 30 ]. The Claimant contends that Regulation 18(1) imposes a mandatory obligation upon the Commission to advertise all vacancies. On this view, any appointment made without prior advertisement is ultra vires the Regulations and void. Counsel stresses that the requirement of transparency inherent in the Regulation can only be met by universal advertisement, so that all eligible officers have notice and opportunity to apply. [ 31 ]. The Defendant, by contrast, submits that Regulation 18(1) imposes no general obligation to advertise every vacancy. Rather, the duty to give notice is conditional upon the Commission directing the Chief Personnel Officer. The Commission, it is argued, retains a discretion whether to give such a direction, and Regulation 18(2) similarly leaves it to the Commission to determine whether advertisement is one of the necessary steps when external recruitment is contemplated. [ 32 ]. Regulation 18 must be interpreted, not in isolation, but as part of the wider framework of the Public Service Regulations. While it is true that Regulation 18(1) uses the word "shall," a purely literal reading of that subsection fails to capture the conditional nature of the provision and the broader structural context within which it operates. In particular, Regulation 15 sheds critical light on how vacancies arise and are to be addressed, and it is only by placing Regulation 18 within that scheme that its proper legal character becomes clear. [ 33 ]. On a close reading, the duty imposed on the Chief Personnel Officer to issue notice is conditional. It arises only "when so directed by the Commission". Thus, the Commission's direction is the operative trigger. If no direction is given, no duty arises. The provision is therefore directory in character, not mandatory in the absolute sense. The clause simply identifies how notice is to be given if the Commission determines that notice is appropriate. [ 34 ]. This conclusion is supported by Regulation 15 of the Public Service Regulations, which governs the reporting of vacancies. It provides: "When a vacancy occurs, or it is known that a vacancy will occur, in any public office in any department or ministry, the Permanent Secretary shall report the fact to the Commission and— (a) if the Permanent Secretary recommends that the vacancy should be filled by the appointment or promotion of an officer serving in that department or ministry, he will inform the Commission and, if the promotion of that officer would involve the supersession of any more senior officers in the ministry, he will also state the reasons for the supersession of each officer; (b) if the Permanent Secretary is unable to recommend the promotion of a serving officer, he will inform the Commission of the names of the most senior officers in the particular grade or cadre from which the promotion would normally be made, stating his reasons why he does not consider the officers named to be suitable for promotion to the vacant post; (c) if the Permanent Secretary recommends that applications to fill the vacancy should be invited from serving officers or from both serving officers and the general public, he will attach to his report a draft advertisement setting out details of the vacant post and its duties and the qualifications for appointment; and (d) if the Permanent Secretary is unable to recommend that the vacancy should be filled immediately, he will so inform the Commission and state his reasons therefore." [ 35 ]. Regulation 15 thus provides the practical scaffolding for how vacancies are reported and assessed. It contemplates several outcomes, only one of which results in the preparation of an advertisement. In particular, under clause (a), a vacancy may be filled by promotion within a department without any notice or advertisement; under clause (b), internal candidates may be considered unsuitable; and only under clause (c) is advertisement formally recommended. It follows, that not every vacancy results in a direction under Regulation 18(1), nor does every vacancy require advertisement. There are clear and legitimate pathways for appointments without either. [ 36 ]. This is not anomalous. The public service is not analogous to the private sector. It is a structured institutional body whose staffing practices are shaped by internal norms of seniority, merit, and institutional memory. Like a family, the public service generally seeks to promote from within, drawing upon mechanisms such as seniority lists, performance appraisals, and assessments by Heads of Department. This explains why the Regulations are drafted to give the Commission flexibility: because it is assumed that within the structured public service, suitable candidates may often be identified without formal advertisement or even service-wide notice. [ 37 ]. Indeed, Regulation 18(2) reinforces this reading by specifying the circumstances in which the Commission must proceed externally. It provides that where no suitable internal candidate exists, or where the interests of the service so require, the Commission may take steps, including advertisement, to fill the vacancy. [ 38 ]. Unlike subsection (1), subsection (2) is triggered only after the Commission has considered and rejected internal candidates. Once that threshold is crossed, the Commission becomes subject to a mandatory duty: it "shall take such step" as it thinks necessary. The phrase "including advertisement" must be understood not as merely illustrative, but as mandating advertisement as one of the steps to be taken. In the context of external recruitment, advertisement is the principal mechanism by which transparency and equal access are ensured. It cannot be omitted unless some equivalent measure is adopted and justified. [ 39 ]. I therefore respectfully depart from the view expressed by Henry J in Public Service Union v Public Service Commission6, a decision relied upon by the Claimant, to the extent that it treats Regulation 18(1) as imposing a general mandatory obligation to give notice by advertisement in every case. While I understand the learned Judge’s purposive reading of the provision, I am of the view that a deeper purposive and structural analysis, one which situates Regulation 18 within the full framework of the Regulations, including Regulation 15 reveals a more nuanced scheme. In that scheme, the Commission’s duties arise only once specific procedural and factual thresholds have been crossed. [ 40 ]. Finally, I note that the House of Assembly, by constitutional design, is an autonomous public service department and does not have a Permanent Secretary. However, this does not detract from the usefulness of Regulation 15 as an interpretive aid. Rather, it confirms the broader point: the Regulations accommodate institutional diversity and permit flexible processes depending on the context. The requirement to issue notice or advertise is not absolute, but conditional, structured, and purposively directed to achieving fairness and transparency in a way that respects the internal architecture of the public service. [ 41 ]. That said, although the House of Assembly enjoys autonomy, it remained incumbent upon the PSC, in discharge of its duty of candour, to demonstrate what internal process was followed when vacancies within that department came to its attention. The Court would have expected evidence of a procedure analogous to that contemplated by Regulation 15, showing how vacancies were received, considered, and progressed. The PSC could not materially depart from such a standard without undermining the overarching principles of fairness and transparency across the service, nor without risking the exclusion of the best pool of candidates from consideration. [ 42 ]. In this regard, the Privy Council in Lovell Romain v Police Service Commission [2014] UKPC 32 emphasised the importance of certainty and transparency in appointment processes. At paragraph 20 of the judgment, the Board observed that: “To permit the Commission to waive parts of the process when it thinks it appropriate would create an uncertain and unequal playing field.” [ 43 ]. That statement underscores the public interest in ensuring that potential candidates know the rules governing appointments and can rely on their consistent application. Applied here, it reinforces the proposition that the PSC ought not to bypass advertisement or notice unless clearly authorised and justified. Absent such justification, the risk is that the process loses its transparency and fails to provide an equal opportunity to all eligible officers. [ 44 ]. I conclude, therefore, that Regulation 18(1) is directory, not mandatory. It creates no free-standing obligation to issue notice in every case. Regulation 18(2), on the other hand, imposes a mandatory duty to act once external recruitment is contemplated, and advertisement is a required part of that step. The overarching statutory purpose, ensuring transparency, equal opportunity, and rational decision-making must always guide the Commission’s discretion, but the specific procedural mechanism it adopts may vary depending on the context and the stage at which the vacancy is assessed. [ 45 ]. Having accepted that Regulation 18(1) is directory rather than mandatory, and that any obligation to issue notice or advertisement arises only upon the Commission’s determination, I find that the PSC was not, strictly speaking, in breach of the Regulation. That conclusion, however, does not end the inquiry. The Court must still examine whether the Commission’s decision not to give such a direction was, in the circumstances, irrational, unfair, or otherwise inconsistent with the requirements of a fair, transparent, and objective process. That is the true threshold for review. [ 46 ]. The Defendant relies principally on the affidavits of Stephen Williams, Secretary to the PSC, and Arlene Regisford-Sam, Chief Personnel Officer. At paragraph 14 of his witness statement, Mr. Williams states that the Commission considered the suitability of officers based on the recommendations of senior officers, and that certain persons were consulted and declined interest. At paragraph 17 he further records that possession of a law degree was regarded as “especially advantageous” for the post of Clerk. No general advertisement or service-wide notice was issued by circular or Gazette. [ 47 ]. It is important to emphasise that neither Mr. Williams nor Mrs. Regisford-Sam identifies a law degree as part of the qualifications prescribed by the public service job descriptions for Clerk or Deputy Clerk. Those job descriptions, not the Regulations, define the established qualifications for the offices, and they did not require a law degree. Regulation 19(1)–(3) sets out the mandatory officer- centred criteria to be applied in assessing eligible officers: seniority, experience, educational qualifications, merit and ability, relative efficiency, general fitness, performance reports, and the other matters enumerated. Regulation 19(4), by contrast, permits consideration of post-centred “specifications … required from time to time” for the particular office. Any such specification must therefore be an objective, pre-existing requirement inherent to the office, uniformly applicable and properly communicated, rather than an ad hoc preference favouring a particular candidate. No such specification was ever adopted or notified in respect of either position. The Commission’s reliance on a law degree as merely “advantageous” was accordingly extraneous to the statutory criteria and could not displace the mandatory evaluation under Regulation 19 of seniority, experience, merit, and ability. The Claimant, though not a lawyer, was not excluded on the face of the prescribed qualifications, and her candidacy was required to be fairly weighed. [ 48 ]. Mr. Williams’ own account confirms that all three officers considered for Clerk already held law degrees. The Claimant contends, and I accept, that if legal qualifications were thought to be critical, advertisement could have attracted a far wider pool of applicants, “scores of lawyers,” in the words of counsel for the claimant, thereby maximising the talent available to the service. Limiting consideration to a select group without transparent criteria deprived the process of openness and denied the Claimant a fair opportunity to compete. [ 49 ]. As for Mrs. Alexander-Charles, the Defendant contends that she preserved her continuity of service when transferred to the Community College in 2020 under the Transfer of Undertakings Act and that her appointment as Clerk in June 2023 was effected by way of re-transfer. However, no documentary evidence of any such re-transfer was produced before the Court. In the absence of such evidence, Regulation 20(3) must apply, which provides that where an officer resigns or otherwise leaves the service, her seniority is reckoned from the date of re-entry. On that footing, Mrs. Alexander-Charles’ seniority could only be calculated from June 2023, rendering her markedly junior to the Claimant. [ 50 ]. As regards the Deputy Clerk, Mr. Williams states at paragraph 21 that both the Claimant and Mrs. Williams-Huggins were considered. The evidence of Mrs. Regisford-Sam and the Claimant confirms that both women held undergraduate degrees, but that the Claimant additionally held a Master’s degree, had nearly three decades in the public service, and had served for twelve years as Senior Stenographer in the House of Assembly, with responsibility for supervising junior staff, including Mrs. Williams-Huggins. On at least one occasion she was appointed to act as Clerk of the House. Although Mrs. Regisford-Sam describes that acting stint as of limited substance since the House was not in session, the fact remains that the Claimant was considered sufficiently competent by her superiors to be entrusted with the acting appointment. [ 51 ]. The comparative evidence before the Court therefore underscores material differences in the qualifications and service records of the three women. The Claimant’s nearly thirty years in the public service, advanced academic qualifications, long tenure in the House, supervisory responsibilities, and her appointment to act as Clerk all suggest that she was a serious candidate for advancement. Mrs. Williams-Huggins, by contrast, had only fourteen years of service, entered the House as a junior officer, and was junior to the Claimant in both seniority and supervisory responsibility. Mrs. Alexander-Charles’ only distinguishing feature was possession of a law degree, which the Commission regarded as advantageous, but which was not required by the job descriptions. On any fair application of Regulation 19, the Claimant’s service record, seniority, and qualifications compared favourably with both appointees. The Commission’s elevation of a non-statutory “bonus” qualification above the prescribed criteria, coupled with the failure to advertise, meant that the Claimant was denied a fair opportunity to compete on the proper statutory grounds. [ 52 ]. Mr. Williams refers on several occasions (paras. 14, 18, 20–21) to “round robin” consultations and informal deliberations by Commissioners. Yet no documentary record of these consultations has been produced. Regulation 6 permits decisions to be taken otherwise than at formal meetings, but Regulation 7 requires the Secretary to record and confirm such decisions. No such records were adduced. This omission is material and undermines confidence that the PSC applied its mind in a structured, transparent manner. [ 53 ]. Taken together, the absence of advertisement, the reliance on informal consultations unsupported by records, the elevation of a job description qualification (a law degree) to decisive weight when it was not prescribed as mandatory, and the failure to weigh the Claimant’s comparative strengths against Mrs. Williams-Huggins for Deputy Clerk, demonstrate that the PSC did not adopt a process which could objectively be described as transparent, fair, or rational. Regulation 19 required the Commission to apply its statutory criteria: seniority, experience, merit, ability, and relative efficiency across the full pool of eligible officers. By substituting a non-mandatory qualification and narrowing the field without advertisement, the Commission acted inconsistently with those statutory purposes. The explanations provided amount to post-hoc justification rather than evidence of contemporaneous decision-making. [ 54 ]. In these circumstances, I find that the PSC’s decision not to advertise the posts was unlawful. While Regulation 18(1) does not impose an absolute obligation, the discretion it confers is not unfettered. It must be exercised in a manner that is consistent with fairness, transparency, and equal opportunity. On the evidence, those principles were not satisfied. The failure to advertise deprived the Claimant and other eligible officers of a fair opportunity to compete and created precisely the uncertain and unequal playing field cautioned against by the Privy Council. [ 55 ]. I therefore conclude that, although the PSC was not under a strict statutory duty to advertise every vacancy, its failure in this case to adopt an alternative process of equal transparency and fairness renders the appointments procedurally improper and contrary to Regulation 18 when read purposively. ISSUE 2: Whether the Commission properly applied the criteria of qualifications, experience, merit merit, ability and seniority under Regulation 19 [ 56 ]. Regulation 19 requires the Commission, when considering officers for promotion, to take into account seniority, experience, educational qualifications, merit, ability and relative efficiency, together with the additional matters set out in sub-regulations (1)-(3). As outlined at paragraphs 46–55 above, the Claimant’s seniority, long service within the House of Assembly, academic qualifications, supervisory responsibilities, and acting appointment as Clerk all fell squarely within these statutory criteria and therefore required structured evaluation. [ 57 ]. The Defendant’s position, advanced through the evidence of Mr. Williams and Mrs. Regisford-Sam, is that the Commission did take account of qualifications and experience, and that the selected officers were regarded as “suitable,” “capable,” and able to perform the duties of the posts. However, neither witness exhibits any contemporaneous or documentary record demonstrating how such conclusions were reached. No minutes, internal assessment matrices, comparative charts, deliberative notes, or other evaluative documents were produced to show that the prescribed statutory criteria were applied. [ 58 ]. While Regulation 19 does not elevate seniority above merit and ability, it does require that all the statutory criteria be conscientiously assessed. In the absence of any documentary evidence of evaluation, and in circumstances where the witnesses relied instead on generalised labels such as “suitable” and “capable”, the Court cannot infer that the Commission undertook the structured comparison required by Regulation 197. This conclusion is reinforced by the improper reliance on a non-mandatory qualification discussed at paragraph 47 above, which suggests that relevant considerations were displaced by extraneous ones. [ 59 ]. The duty of candour obliges a public authority exercising statutory appointment powers to demonstrate the process by which it applied the governing criteria. Where the statutory scheme mandates selection on objective grounds, bare assertions of suitability are insufficient. The unexplained absence of contemporaneous records in this case undermines the Defendant’s contention that the Commission complied with Regulation 19. [ 60 ]. The Claimant’s evidence as to her own seniority, qualifications, and extensive service record stands essentially unchallenged. In the absence of any documentation showing that these matters were weighed against those of the appointees, the Commission has not demonstrated that it took the mandatory criteria into account in any meaningful way. [ 61 ]. In judicial review, a public authority must meet the duty of candour. Where a statutory scheme requires selection on objective grounds, it is not enough for the authority to say it was done, it must show how it was done. Vague attestations by Commission officials do not discharge this duty. The Court is entitled to expect a reasoned record of deliberation, or at least some documentary evidence reflecting the application of the governing criteria. That is wholly absent here. [ 62 ]. I therefore find that the appointments in issue were not only procedurally flawed under Regulation 18, but substantively flawed under Regulation 19. The Commission has failed to demonstrate that it took into account the mandatory criteria of qualifications, experience, merit, ability and seniority in any conscientious or documented manner. The appointments are thus liable to be quashed on both procedural and substantive grounds. Issue 3: Whether the impugned decisions were unlawful on grounds of unreasonableness, procedural impropriety, or apparent bias [ 63 ]. The determination of this issue follows directly from the findings reached under Issues 1 and 2. Having found that the Commission failed to adopt a transparent or fair process consistent with Regulation 18, and further failed to demonstrate compliance with the statutory criteria under Regulation 19, the Court must now consider the legal consequence of those deficiencies. [ 64 ]. The Claimant submits that the combined breaches of Regulations 18 and 19 render the decisions unlawful. She argues that the legitimacy of appointments in the public service depends on strict adherence to the statutory framework, and that material non-compliance necessarily invalidates the outcome. [ 65 ]. The Defendant contends that even if there were procedural shortcomings, they do not rise to the level of illegality. It submits that the Commission retains a broad discretion in matters of appointment, and that the Court should not interfere absent proof of mala fides, manifest irrationality, or substantial prejudice. [ 66 ]. The relevant legal standard is set out in Burke v Sam8, where the Court of Appeal affirmed that the PSC is under a duty to demonstrate compliance with the applicable regulatory framework to ensure that statutory procedures designed to guarantee fairness and transparency are observed. The Court emphasised that the Commission must be able to demonstrate, by reference to evidence, that it has complied with the governing rules and has acted fairly. In the absence of such demonstration, the Court is entitled to intervene. [ 67 ]. Against that standard, the Court considers the three classic grounds of judicial review:  Unreasonableness / Irrationality. The Commission’s reliance on a non-mandatory job- description qualification, its failure to adopt any transparent comparative process, and its preference for candidates manifestly junior in service without recorded reasons were not rational exercises of discretion. No reasonable decision-maker properly directing itself could have considered such a process sufficient.  Procedural Impropriety. The duty of fairness required transparency, documentation, and even-handed comparison. Yet there was no advertisement or service-wide notice, no minutes or records of deliberation, and only uncorroborated references to “round robin” consultations, contrary to the requirements of Regulations 6 and 7. Such deficiencies deprived officers of the opportunity to compete fairly and breached the procedural protections the Regulations were designed to secure.  Apparent Bias. The cumulative effect of narrowing the field to a select group, elevating an “advantageous” qualification above the prescribed criteria, and failing to open the process to wider competition would reasonably appear to a fair-minded and informed observer to favour certain individuals over others. While there is no evidence of actual bias, the process gave rise to an appearance of partiality and unequal treatment. [ 68 ]. Before turning to the legal consequences of the deficiencies identified, it is necessary to reiterate the statutory purpose that underpins the Commission’s obligations of fairness and transparency. Regulation 18 does not require notice or advertisement in every instance, but the underlying objective remains constant: to ensure that public service appointments are made through processes that are transparent, objective, and free from arbitrariness. Notice and advertisement remain the most direct and defensible means of achieving those purposes, as they provide all eligible officers with an equal opportunity to be considered. Where the Commission elects not to issue internal notice or to advertise externally, it must adopt an alternative process that is equally transparent and objective. Such alternatives may include a service-wide review of personnel records, structured consultation with Permanent Secretaries or Heads of Department, or the convening of an impartial panel to assess the full pool of eligible officers. Whatever method is chosen, the Commission must be able to demonstrate, by cogent evidence, that its process was fair, rational, and consistent with the statutory criteria of merit, ability, and seniority. Absent such evidence, the failure to give notice or advertise undermines the statutory purposes and renders the resulting appointment susceptible to judicial review. [ 69 ]. I therefore hold that the appointment decisions challenged in these proceedings were procedurally improper, unreasonable, and contrary to the Regulations. The Commission failed to take into account relevant considerations mandated by law, which is an illegality in administrative law, and further, the lack of fair process in considering the claimant’s candidature renders the decision procedurally improper. The decisions are accordingly unlawful and, in the exercise of my supervisory jurisdiction, I find them liable to be quashed. Issue 4: Whether the Court should exercise its discretion to grant relief [ 70 ]. The Claimant seeks orders of certiorari and declaratory relief. The Defendant resists on the basis that there has been delay, that the appointment has been acted upon, and that to disturb it now would prejudice the incumbent officers and disrupt the effective functioning of the department. [ 71 ]. Under CPR 56.4, the Court retains a discretion to refuse relief if the application was not made promptly, or where the grant of relief would cause substantial hardship to any person, substantially prejudice the rights of any person, or be detrimental to good administration. Unlike the previous rules, the 2023 revision does not prescribe a fixed outer limit; the question of delay is assessed in context. [ 72 ]. In the present case, I am not satisfied that the discretionary bars relied upon by the Defendant have been made out. The Defendant argues that the Claimant delayed from the time of appointment to the filing of the claim, but the delay in question must be considered in its full factual and legal context. The Claimant acted within the limitation period, and no evidence has been adduced to show that the time taken was unreasonable in light of the complexity of the matter and her efforts to ascertain the basis for the appointment. The procedural rule does not require mechanical urgency, but timely action in all the circumstances. That standard has not been breached. [ 73 ]. As to the non-joinder of the Clerk of the House and the Deputy Clerk, I do not consider that omission to be fatal to the claim. The judicial review challenge lies against the decision-maker, the Commission, not the beneficiaries of the decision. The Court notes that the successful appointees were not joined as parties and that it is generally desirable, where practicable, to afford persons whose interests may be affected an opportunity to be heard. However, neither officer was party to the impugned process, nor would their participation alter the factual or legal assessment of its lawfulness. In matters of this kind, the Commission is capable of presenting the institutional perspective, and the Court is satisfied that the interests of the appointees have been considered in the round. Their joinder would add nothing to the analysis of whether the Commission acted lawfully under the statutory scheme. Any potential prejudice to them arising from the grant of relief must instead be addressed under CPR 56.4, which provides a framework for evaluating hardship, prejudice, or detriment to good administration. [ 74 ]. Moreover, the Defendant has not demonstrated, with any specificity or evidential clarity, what prejudice would be suffered by the incumbent officers if the relief sought were granted. The suggestion of disruption or hardship is generalised and speculative. There is no evidence of financial loss, institutional dislocation, or personal hardship. Incumbents necessarily hold office subject to the legality of their appointment, and correction of an unlawful administrative process does not, without more, amount to prejudice within the meaning of CPR 56.4. While the Court is always alive to the realities of administrative continuity and the need for orderly transitions, the discretion to withhold relief must be grounded in concrete, substantiated prejudice. That is lacking here. [ 75 ]. I therefore see no basis to refuse the relief sought. The appointments are quashed, and the Claimant is entitled to a declaration that the Commission acted unlawfully in breach of Regulations 18 and 19. Relief and Conclusion [ 76 ]. The breaches identified go to the heart of legality, fairness and good governance. The Commission is under a public duty to comply with the Regulations and law, and its failure to do so resulted in a process that was both procedurally and substantively flawed. These breaches are not trivial. They are not minor or technical defects; they go to the core of what the Regulations were designed to secure: procedural integrity, fairness and merit-based appointments. They represent a serious departure from the standards of objectivity, transparency, and accountability that underpin the constitutional and regulatory framework governing public service appointments. Where appointments are made outside those standards, the integrity of the service is compromised, and public confidence is eroded. In the absence of concrete prejudice under CPR 56.4, the ordinary consequence is that the Court must grant appropriate relief. To withhold such relief would dilute the Court’s supervisory jurisdiction and undermine the rule of law. [ 77 ]. For the reasons set out above, the Court finds that the Public Service Commission acted unlawfully in failing to adopt a transparent and fair process under Regulation 18 and in failing to demonstrate compliance with the mandatory criteria laid down in Regulation 19 of the Public Service Regulations. [ 78 ]. Accordingly, the Court grants a declaration that the process by which the appointments of Mrs. Deborah Alexander-Charles as Clerk of the House of Assembly and Mrs. Simone Williams-Huggins as Deputy Clerk of the House of Assembly were undertaken, was unlawful and contrary to Regulations 18 and 19. The Court further grants an order of certiorari quashing both appointments. [ 79 ]. On the question of costs, the Claimant has succeeded in establishing unlawful conduct on the part of the Commission and has obtained substantive relief in the form of both declaratory orders and certiorari. That success is not merely technical; it represents a vindication of the public interest in lawful, fair, and merit-based public service appointments. In judicial review, the general rule is that a successful claimant should recover her costs unless there is good reason otherwise, and no such reason has been shown here. [ 80 ]. In the circumstances, costs are awarded to the Claimant, summarily assessed in the amount of $10,000.00, to be paid by the Defendant. [ 81 ]. The claimant shall have carriage of the order after judgment.

BY THE COURT

REGISTRAR

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL ANTIGUA and BARBUDA ANUHCVAP2020/0009 between BRENDA GILLIAN FURLONGE Appellant and

18.Advertisement of vacancies (1) The Chief Personnel Officer shall, when so directed by the Commission, by circular or by publication in the Gazette, give notices of vacancies, and any officer may make application in the prescribed form for appointment to any such vacancy. Such application shall be forwarded to the Chief Personnel Officer through the Head of Department and Permanent Secretary under whose authority the applicant is serving. (2) Where the Commission considers either that there is no suitable candidate already in the public service available for the filling of any vacancy or that, having regard to qualifications, experience and merit, it would be advantageous and in the best interest of the public service that the service of a person not already in the service be secured, the commission shall take such step (including advertisement of the existence of such vacancy) as it may think necessary for the filling of such vacancy.

19.Principles of selection for promotion (1) In considering the eligibility of officers for promotion, the Commission shall take into account the seniority, experience, educational qualifications, merit and ability together with relative efficiency of such officers and, in the event of an equality of efficiency of two or more officers, shall give consideration to the relative seniority of the officers available for promotion to the vacancy. (2) The Commission, in considering the eligibility of officers under Sub regulation (1), for appointment on promotion shall attach weight to –– (a) seniority, where promotion is to an office that involves work of a routine nature; 2 R v Soneji [2005] UKHL 49; Newbold v Commissioner of Police [2014] UKPC 12 (b) merit and ability, where promotion is to an office that involves work of progressively greater and higher responsibility and initiative than is required for an office specified in paragraph (a) (3) In the performance of its functions under sub regulations (1) and (2), the Commission shall take into account as respects each officer –– (a) his general fitness; (b) The position of his name on the seniority list; (c ) any special qualifications; (d) any special course of training that he may have undergone (whether at the expense of the government or otherwise); (e) the evaluation of his overall performance as reflected in annual confidential reports by any permanent secretary, head of department or other senior officer under whom the officer worked during his service; (f) any letters of commendation or special reports in respect of any special work done by the officer; (g) the duties of which he has had knowledge; (h) the duties of the officer for which he is a candidate; (i) any specific recommendation of the chief personnel officer, permanent secretary of head of department for filling the particular post; (j) any previous employment of his in the public service or otherwise; (k) any special reports for which the Commission may call; (l) his devotion to duty. (4) In addition to the requirements Prescribed in sub regulations one, two and three the Commission shall consider any specifications that may be required from time to time for appointment to the particular post. Case Law Guidance [ 24 ]. The parties placed before the Court a substantial body of authority. It is neither necessary nor desirable to recite each decision in this judgment. Nonetheless, I confirm that all authorities submitted were carefully considered and that the general principles distilled from them are well settled in judicial review and have guided the Court’s analysis of the issues. [ 25 ]. The Eastern Caribbean Court of Appeal in Tyrone Burke (Chief Personnel Officer) v Otto Sam3 reaffirmed the principle that decisions concerning public officers must be demonstrably authorised by the PSC, and that the Commission owes a continuing duty of candour to place before the Court all materials necessary to test the lawfulness of its decision. The absence of proper documentary record–keeping was held to justify adverse inferences against the public authority. [ 26 ]. In Henriques v Harding4, the Court emphasised that statutory preconditions to valid decision–making by the PSC must be strictly observed, and that even technical breaches can invalidate appointments if they undermine fairness or transparency. [ 27 ]. Similarly, in Rodney v Attorney General of Saint Lucia5, the High Court held that the PSC’s discretion is not unfettered; it must be exercised in accordance with the Regulations, and failure to apply the criteria of merit, ability and seniority amounted to unlawfulness. The Court underscored that fair competition and equal opportunity are essential hallmarks of a lawful appointment process. [ 28 ]. The common theme emerging from these authorities is that while the PSC enjoys a margin of discretion, it is constrained by the constitutional and statutory framework. Where it fails to advertise vacancies as required, or where it bypasses merit and seniority without reason, its decision is susceptible to being quashed as unlawful. [ 29 ]. The authorities also remind us that judicial review remedies are not automatic. The Court must balance the rule of law against the need for stability in public administration, and may withhold relief if, to grant it, would cause disproportionate disruption or prejudice to third parties. 3 SVGHCVAP2014/0002 (judgment delivered 15 September 2015) 4 BVIHCV2010/0181 5 SLUHCV2012/0124 SSUE 1: whether the PSC acted in breach of Regulation 18 Application of Regulation 18 to the Facts [ 30 ]. The Claimant contends that Regulation 18(1) imposes a mandatory obligation upon the Commission to advertise all vacancies. On this view, any appointment made without prior advertisement is ultra vires the Regulations and void. Counsel stresses that the requirement of transparency inherent in the Regulation can only be met by universal advertisement, so that all eligible officers have notice and opportunity to apply. [ 31 ]. The Defendant, by contrast, submits that Regulation 18(1) imposes no general obligation to advertise every vacancy. Rather, the duty to give notice is conditional upon the Commission directing the Chief Personnel Officer. The Commission, it is argued, retains a discretion whether to give such a direction, and Regulation 18(2) similarly leaves it to the Commission to determine whether advertisement is one of the necessary steps when external recruitment is contemplated. [ 32 ]. Regulation 18 must be interpreted, not in isolation, but as part of the wider framework of the Public Service Regulations. While it is true that Regulation 18(1) uses the word “shall,” a purely literal reading of that subsection fails to capture the conditional nature of the provision and the broader structural context within which it operates. In particular, Regulation 15 sheds critical light on how vacancies arise and are to be addressed, and it is only by placing Regulation 18 within that scheme that its proper legal character becomes clear. [ 33 ]. On a close reading, the duty imposed on the Chief Personnel Officer to issue notice is conditional. It arises only “when so directed by the Commission”. Thus, the Commission’s direction is the operative trigger. If no direction is given, no duty arises. The provision is therefore directory in character, not mandatory in the absolute sense. The clause simply identifies how notice is to be given if the Commission determines that notice is appropriate. [ 34 ]. This conclusion is supported by Regulation 15 of the Public Service Regulations, which governs the reporting of vacancies. It provides: “When a vacancy occurs, or it is known that a vacancy will occur, in any public office in any department or ministry, the Permanent Secretary shall report the fact to the Commission and—— (a) if the Permanent Secretary recommends that the vacancy should be filled by the appointment or promotion of an officer serving in that department or ministry, he will inform the Commission and, if the promotion of that officer would involve the supersession of any more senior officers in the ministry, he will also state the reasons for the supersession of each officer; (b) if the Permanent Secretary is unable to recommend the promotion of a serving officer, he will inform the Commission of the names of the most senior officers in the particular grade or cadre from which the promotion would normally be made, stating his reasons why he does not consider the officers named to be suitable for promotion to the vacant post; (c) if the Permanent Secretary recommends that applications to fill the vacancy should be invited from serving officers or from both serving officers and the general public, he will attach to his report a draft advertisement setting out details of the vacant post and its duties and the qualifications for appointment; and (d) if the Permanent Secretary is unable to recommend that the vacancy should be filled immediately, he will so inform the Commission and state his reasons therefore.” [ 35 ]. Regulation 15 thus provides the practical scaffolding for how vacancies are reported and assessed. It contemplates several outcomes, only one of which results in the preparation of an advertisement. In particular, under clause (a), a vacancy may be filled by promotion within a department without any notice or advertisement; under clause (b), internal candidates may be considered unsuitable; and only under clause (c) is advertisement formally recommended. It follows, that not every vacancy results in a direction under Regulation 18(1), nor does every vacancy require advertisement. There are clear and legitimate pathways for appointments without either. [ 36 ]. This is not anomalous. The public service is not analogous to the private sector. It is a structured institutional body whose staffing practices are shaped by internal norms of seniority, merit, and institutional memory. Like a family, the public service generally seeks to promote from within, drawing upon mechanisms such as seniority lists, performance appraisals, and assessments by Heads of Department. This explains why the Regulations are drafted to give the Commission flexibility: because it is assumed that within the structured public service, suitable candidates may often be identified without formal advertisement or even service–wide notice. [ 37 ]. Indeed, Regulation 18(2) reinforces this reading by specifying the circumstances in which the Commission must proceed externally. It provides that where no suitable internal candidate exists, or where the interests of the service so require, the Commission may take steps, including advertisement, to fill the vacancy. [ 38 ]. Unlike subsection (1), subsection (2) is triggered only after the Commission has considered and rejected internal candidates. Once that threshold is crossed, the Commission becomes subject to a mandatory duty: it “shall take such step” as it thinks necessary. The phrase “including advertisement” must be understood not as merely illustrative, but as mandating advertisement as one of the steps to be taken. In the context of external recruitment, advertisement is the principal mechanism by which transparency and equal access are ensured. It cannot be omitted unless some equivalent measure is adopted and justified. [ 39 ]. I therefore respectfully depart from the view expressed by Henry J in Public Service Union v Public Service Commission6, a decision relied upon by the Claimant, to the extent that it treats Regulation 18(1) as imposing a general mandatory obligation to give notice by advertisement in every case. While I understand the learned Judge’s purposive reading of the provision, I am of the view that a deeper purposive and structural analysis, one which situates Regulation 18 within the full framework of the Regulations, including Regulation 15 reveals a more nuanced scheme. In that scheme, the Commission’s duties arise only once specific procedural and factual thresholds have been crossed. [ 40 ]. Finally, I note that the House of Assembly, by constitutional design, is an autonomous public service department and does not have a Permanent Secretary. However, this does not detract from the usefulness of Regulation 15 as an interpretive aid. Rather, it confirms the broader point: the Regulations accommodate institutional diversity and permit flexible processes depending on the context. The requirement to issue notice or advertise is not absolute, but conditional, structured, and 6 SVGHCV2016/0219; judgment delivered August 17, 2017 purposively directed to achieving fairness and transparency in a way that respects the internal architecture of the public service. [ 41 ]. That said, although the House of Assembly enjoys autonomy, it remained incumbent upon the PSC, in discharge of its duty of candour, to demonstrate what internal process was followed when vacancies within that department came to its attention. The Court would have expected evidence of a procedure analogous to that contemplated by Regulation 15, showing how vacancies were received, considered, and progressed. The PSC could not materially depart from such a standard without undermining the overarching principles of fairness and transparency across the service, nor without risking the exclusion of the best pool of candidates from consideration. [ 42 ]. In this regard, the Privy Council in Lovell Romain v Police Service Commission [2014] UKPC 32 emphasised the importance of certainty and transparency in appointment processes. At paragraph 20 of the judgment, the Board observed that: “To permit the Commission to waive parts of the process when it thinks it appropriate would create an uncertain and unequal playing field.” [ 43 ]. That statement underscores the public interest in ensuring that potential candidates know the rules governing appointments and can rely on their consistent application. Applied here, it reinforces the proposition that the PSC ought not to bypass advertisement or notice unless clearly authorised and justified. Absent such justification, the risk is that the process loses its transparency and fails to provide an equal opportunity to all eligible officers. [ 44 ]. I conclude, therefore, that Regulation 18(1) is directory, not mandatory. It creates no free–standing obligation to issue notice in every case. Regulation 18(2), on the other hand, imposes a mandatory duty to act once external recruitment is contemplated, and advertisement is a required part of that step. The overarching statutory purpose, ensuring transparency, equal opportunity, and rational decision–making must always guide the Commission’s discretion, but the specific procedural mechanism it adopts may vary depending on the context and the stage at which the vacancy is assessed. [ 45 ]. Having accepted that Regulation 18(1) is directory rather than mandatory, and that any obligation to issue notice or advertisement arises only upon the Commission’s determination, I find that the PSC was not, strictly speaking, in breach of the Regulation. That conclusion, however, does not end the inquiry. The Court must still examine whether the Commission’s decision not to give such a direction was, in the circumstances, irrational, unfair, or otherwise inconsistent with the requirements of a fair, transparent, and objective process. That is the true threshold for review. [ 46 ]. The Defendant relies principally on the affidavits of Stephen Williams, Secretary to the PSC, and Arlene Regisford-Sam, Chief Personnel Officer. At paragraph 14 of his witness statement, Mr. Williams states that the Commission considered the suitability of officers based on the recommendations of senior officers, and that certain persons were consulted and declined interest. At paragraph 17 he further records that possession of a law degree was regarded as “especially advantageous” for the post of Clerk. No general advertisement or service-wide notice was issued by circular or Gazette. [ 47 ]. It is important to emphasise that neither Mr. Williams nor Mrs. Regisford-Sam identifies a law degree as part of the qualifications prescribed by the public service job descriptions for Clerk or Deputy Clerk. Those job descriptions, not the Regulations, define the established qualifications for the offices, and they did not require a law degree. Regulation 19(1)–(3) sets out the mandatory officer-centred criteria to be applied in assessing eligible officers: seniority, experience, educational qualifications, merit and ability, relative efficiency, general fitness, performance reports, and the other matters enumerated. Regulation 19(4), by contrast, permits consideration of post-centred “specifications … required from time to time” for the particular office. Any such specification must therefore be an objective, pre-existing requirement inherent to the office, uniformly applicable and properly communicated, rather than an ad hoc preference favouring a particular candidate. No such specification was ever adopted or notified in respect of either position. The Commission’s reliance on a law degree as merely “advantageous” was accordingly extraneous to the statutory criteria and could not displace the mandatory evaluation under Regulation 19 of seniority, experience, merit, and ability. The Claimant, though not a lawyer, was not excluded on the face of the prescribed qualifications, and her candidacy was required to be fairly weighed. [ 48 ]. Mr. Williams’ own account confirms that all three officers considered for Clerk already held law degrees. The Claimant contends, and I accept, that if legal qualifications were thought to be critical, advertisement could have attracted a far wider pool of applicants, “scores of lawyers,” in the words of counsel for the claimant, thereby maximising the talent available to the service. Limiting consideration to a select group without transparent criteria deprived the process of openness and denied the Claimant a fair opportunity to compete. [ 49 ]. As for Mrs. Alexander-Charles, the Defendant contends that she preserved her continuity of service when transferred to the Community College in 2020 under the Transfer of Undertakings Act and that her appointment as Clerk in June 2023 was effected by way of re-transfer. However, no documentary evidence of any such re-transfer was produced before the Court. In the absence of such evidence, Regulation 20(3) must apply, which provides that where an officer resigns or otherwise leaves the service, her seniority is reckoned from the date of re-entry. On that footing, Mrs. Alexander-Charles’ seniority could only be calculated from June 2023, rendering her markedly junior to the Claimant. [ 50 ]. As regards the Deputy Clerk, Mr. Williams states at paragraph 21 that both the Claimant and Mrs. Williams-Huggins were considered. The evidence of Mrs. Regisford-Sam and the Claimant confirms that both women held undergraduate degrees, but that the Claimant additionally held a Master’s degree, had nearly three decades in the public service, and had served for twelve years as Senior Stenographer in the House of Assembly, with responsibility for supervising junior staff, including Mrs. Williams-Huggins. On at least one occasion she was appointed to act as Clerk of the House. Although Mrs. Regisford-Sam describes that acting stint as of limited substance since the House was not in session, the fact remains that the Claimant was considered sufficiently competent by her superiors to be entrusted with the acting appointment. [ 51 ]. The comparative evidence before the Court therefore underscores material differences in the qualifications and service records of the three women. The Claimant’s nearly thirty years in the public service, advanced academic qualifications, long tenure in the House, supervisory responsibilities, and her appointment to act as Clerk all suggest that she was a serious candidate for advancement. Mrs. Williams-Huggins, by contrast, had only fourteen years of service, entered the House as a junior officer, and was junior to the Claimant in both seniority and supervisory responsibility. Mrs. Alexander-Charles’ only distinguishing feature was possession of a law degree, which the Commission regarded as advantageous, but which was not required by the job descriptions. On any fair application of Regulation 19, the Claimant’s service record, seniority, and qualifications compared favourably with both appointees. The Commission’s elevation of a non-statutory “bonus” qualification above the prescribed criteria, coupled with the failure to advertise, meant that the Claimant was denied a fair opportunity to compete on the proper statutory grounds. [ 52 ]. Mr. Williams refers on several occasions (paras. 14, 18, 20–21) to “round robin” consultations and informal deliberations by Commissioners. Yet no documentary record of these consultations has been produced. Regulation 6 permits decisions to be taken otherwise than at formal meetings, but Regulation 7 requires the Secretary to record and confirm such decisions. No such records were adduced. This omission is material and undermines confidence that the PSC applied its mind in a structured, transparent manner. [ 53 ]. Taken together, the absence of advertisement, the reliance on informal consultations unsupported by records, the elevation of a job description qualification (a law degree) to decisive weight when it was not prescribed as mandatory, and the failure to weigh the Claimant’s comparative strengths against Mrs. Williams-Huggins for Deputy Clerk, demonstrate that the PSC did not adopt a process which could objectively be described as transparent, fair, or rational. Regulation 19 required the Commission to apply its statutory criteria: seniority, experience, merit, ability, and relative efficiency across the full pool of eligible officers. By substituting a non-mandatory qualification and narrowing the field without advertisement, the Commission acted inconsistently with those statutory purposes. The explanations provided amount to post-hoc justification rather than evidence of contemporaneous decision-making. [ 54 ]. In these circumstances, I find that the PSC’s decision not to advertise the posts was unlawful. While Regulation 18(1) does not impose an absolute obligation, the discretion it confers is not unfettered. It must be exercised in a manner that is consistent with fairness, transparency, and equal opportunity. On the evidence, those principles were not satisfied. The failure to advertise deprived the Claimant and other eligible officers of a fair opportunity to compete and created precisely the uncertain and unequal playing field cautioned against by the Privy Council. [ 55 ]. I therefore conclude that, although the PSC was not under a strict statutory duty to advertise every vacancy, its failure in this case to adopt an alternative process of equal transparency and fairness renders the appointments procedurally improper and contrary to Regulation 18 when read purposively. ISSUE 2: Whether the Commission properly applied the criteria of qualifications, experience, merit merit, ability and seniority under Regulation 19 [ 56 ]. Regulation 19 requires the Commission, when considering officers for promotion, to take into account seniority, experience, educational qualifications, merit, ability and relative efficiency, together with the additional matters set out in sub–regulations (1)–(3). As outlined at paragraphs 46––55 above, the Claimant’s seniority, long service within the House of Assembly, academic qualifications, supervisory responsibilities, and acting appointment as Clerk all fell squarely within these statutory criteria and therefore required structured evaluation. [ 57 ]. The Defendant’s position, advanced through the evidence of Mr. Williams and Mrs. Regisford–Sam, is that the Commission did take account of qualifications and experience, and that the selected officers were regarded as “suitable,” “capable,” and able to perform the duties of the posts. However, neither witness exhibits any contemporaneous or documentary record demonstrating how such conclusions were reached. No minutes, internal assessment matrices, comparative charts, deliberative notes, or other evaluative documents were produced to show that the prescribed statutory criteria were applied. [ 58 ]. While Regulation 19 does not elevate seniority above merit and ability, it does require that all the statutory criteria be conscientiously assessed. In the absence of any documentary evidence of evaluation, and in circumstances where the witnesses relied instead on generalised labels such as “suitable” and “capable”, the Court cannot infer that the Commission undertook the structured comparison required by Regulation 197. This conclusion is reinforced by the improper reliance on a non–mandatory qualification discussed at paragraph 47 above, which suggests that relevant considerations were displaced by extraneous ones. [ 59 ]. The duty of candour obliges a public authority exercising statutory appointment powers to demonstrate the process by which it applied the governing criteria. Where the statutory scheme mandates selection on objective grounds, bare assertions of suitability are insufficient. The unexplained absence of contemporaneous records in this case undermines the Defendant’s contention that the Commission complied with Regulation 19. [ 60 ]. The Claimant’s evidence as to her own seniority, qualifications, and extensive service record stands essentially unchallenged. In the absence of any documentation showing that these matters were weighed against those of the appointees, the Commission has not demonstrated that it took the mandatory criteria into account in any meaningful way. [ 61 ]. In judicial review, a public authority must meet the duty of candour. Where a statutory scheme requires selection on objective grounds, it is not enough for the authority to say it was done, it must show how it was done. Vague attestations by Commission officials do not discharge this duty. The 7 Wisniewski principle [Wisniewski v Cenral Manchester Health Authority 1998] cited in Otto Sam: if a piece of evidence one would expect to see is absent without explanation, the court may infer that its content would not have helped the withholder’s case Court is entitled to expect a reasoned record of deliberation, or at least some documentary evidence reflecting the application of the governing criteria. That is wholly absent here. [ 62 ]. I therefore find that the appointments in issue were not only procedurally flawed under Regulation 18, but substantively flawed under Regulation 19. The Commission has failed to demonstrate that it took into account the mandatory criteria of qualifications, experience, merit, ability and seniority in any conscientious or documented manner. The appointments are thus liable to be quashed on both procedural and substantive grounds. Issue 3: Whether the impugned decisions were unlawful on grounds of unreasonableness, procedural impropriety, or apparent bias [ 63 ]. The determination of this issue follows directly from the findings reached under Issues 1 and 2. Having found that the Commission failed to adopt a transparent or fair process consistent with Regulation 18, and further failed to demonstrate compliance with the statutory criteria under Regulation 19, the Court must now consider the legal consequence of those deficiencies. [ 64 ]. The Claimant submits that the combined breaches of Regulations 18 and 19 render the decisions unlawful. She argues that the legitimacy of appointments in the public service depends on strict adherence to the statutory framework, and that material non–compliance necessarily invalidates the outcome. [ 65 ]. The Defendant contends that even if there were procedural shortcomings, they do not rise to the level of illegality. It submits that the Commission retains a broad discretion in matters of appointment, and that the Court should not interfere absent proof of mala fides, manifest irrationality, or substantial prejudice. [ 66 ]. The relevant legal standard is set out in Burke v Sam8, where the Court of Appeal affirmed that the PSC is under a duty to demonstrate compliance with the applicable regulatory framework to ensure that statutory procedures designed to guarantee fairness and transparency are observed. The Court emphasised that the Commission must be able to demonstrate, by reference to evidence, that it has complied with the governing rules and has acted fairly. In the absence of such demonstration, the Court is entitled to intervene. [ 67 ]. Against that standard, the Court considers the three classic grounds of judicial review:   Unreasonableness / Irrationality. The Commission’s reliance on a non–mandatory job– description qualification, its failure to adopt any transparent comparative process, and its preference for candidates manifestly junior in service without recorded reasons were not rational exercises of discretion. No reasonable decision–maker properly directing itself could have considered such a process sufficient.   Procedural Impropriety. The duty of fairness required transparency, documentation, and even–handed comparison. Yet there was no advertisement or service–wide notice, 8 [SVGHCVAP2014/0002]; judgment delivered September 15, 2015 no minutes or records of deliberation, and only uncorroborated references to “round robin” consultations, contrary to the requirements of Regulations 6 and 7. Such deficiencies deprived officers of the opportunity to compete fairly and breached the procedural protections the Regulations were designed to secure.   Apparent Bias. The cumulative effect of narrowing the field to a select group, elevating an “advantageous” qualification above the prescribed criteria, and failing to open the process to wider competition would reasonably appear to a fair–minded and informed observer to favour certain individuals over others. While there is no evidence of actual bias, the process gave rise to an appearance of partiality and unequal treatment. [ 68 ]. Before turning to the legal consequences of the deficiencies identified, it is necessary to reiterate the statutory purpose that underpins the Commission’s obligations of fairness and transparency. Regulation 18 does not require notice or advertisement in every instance, but the underlying objective remains constant: to ensure that public service appointments are made through processes that are transparent, objective, and free from arbitrariness. Notice and advertisement remain the most direct and defensible means of achieving those purposes, as they provide all eligible officers with an equal opportunity to be considered. Where the Commission elects not to issue internal notice or to advertise externally, it must adopt an alternative process that is equally transparent and objective. Such alternatives may include a service–wide review of personnel records, structured consultation with Permanent Secretaries or Heads of Department, or the convening of an impartial panel to assess the full pool of eligible officers. Whatever method is chosen, the Commission must be able to demonstrate, by cogent evidence, that its process was fair, rational, and consistent with the statutory criteria of merit, ability, and seniority. Absent such evidence, the failure to give notice or advertise undermines the statutory purposes and renders the resulting appointment susceptible to judicial review. [ 69 ]. I therefore hold that the appointment decisions challenged in these proceedings were procedurally improper, unreasonable, and contrary to the Regulations. The Commission failed to take into account relevant considerations mandated by law, which is an illegality in administrative law, and further, the lack of fair process in considering the claimant’s candidature renders the decision procedurally improper. The decisions are accordingly unlawful and, in the exercise of my supervisory jurisdiction, I find them liable to be quashed. Issue 4: Whether the Court should exercise its discretion to grant relief [ 70 ]. The Claimant seeks orders of certiorari and declaratory relief. The Defendant resists on the basis that there has been delay, that the appointment has been acted upon, and that to disturb it now would prejudice the incumbent officers and disrupt the effective functioning of the department. [ 71 ]. Under CPR 56.4, the Court retains a discretion to refuse relief if the application was not made promptly, or where the grant of relief would cause substantial hardship to any person, substantially prejudice the rights of any person, or be detrimental to good administration. Unlike the previous rules, the 2023 revision does not prescribe a fixed outer limit; the question of delay is assessed in context. [ 72 ]. In the present case, I am not satisfied that the discretionary bars relied upon by the Defendant have been made out. The Defendant argues that the Claimant delayed from the time of appointment to the filing of the claim, but the delay in question must be considered in its full factual and legal context. The Claimant acted within the limitation period, and no evidence has been adduced to show that the time taken was unreasonable in light of the complexity of the matter and her efforts to ascertain the basis for the appointment. The procedural rule does not require mechanical urgency, but timely action in all the circumstances. That standard has not been breached. [ 73 ]. As to the non–joinder of the Clerk of the House and the Deputy Clerk, I do not consider that omission to be fatal to the claim. The judicial review challenge lies against the decision–maker, the Commission, not the beneficiaries of the decision. The Court notes that the successful appointees were not joined as parties and that it is generally desirable, where practicable, to afford persons whose interests may be affected an opportunity to be heard. However, neither officer was party to the impugned process, nor would their participation alter the factual or legal assessment of its lawfulness. In matters of this kind, the Commission is capable of presenting the institutional perspective, and the Court is satisfied that the interests of the appointees have been considered in the round. Their joinder would add nothing to the analysis of whether the Commission acted lawfully under the statutory scheme. Any potential prejudice to them arising from the grant of relief must instead be addressed under CPR 56.4, which provides a framework for evaluating hardship, prejudice, or detriment to good administration. [ 74 ]. Moreover, the Defendant has not demonstrated, with any specificity or evidential clarity, what prejudice would be suffered by the incumbent officers if the relief sought were granted. The suggestion of disruption or hardship is generalised and speculative. There is no evidence of financial loss, institutional dislocation, or personal hardship. Incumbents necessarily hold office subject to the legality of their appointment, and correction of an unlawful administrative process does not, without more, amount to prejudice within the meaning of CPR 56.4. While the Court is always alive to the realities of administrative continuity and the need for orderly transitions, the discretion to withhold relief must be grounded in concrete, substantiated prejudice. That is lacking here. [ 75 ]. I therefore see no basis to refuse the relief sought. The appointments are quashed, and the Claimant is entitled to a declaration that the Commission acted unlawfully in breach of Regulations 18 and 19. Relief and Conclusion [ 76 ]. The breaches identified go to the heart of legality, fairness and good governance. The Commission is under a public duty to comply with the Regulations and law, and its failure to do so resulted in a process that was both procedurally and substantively flawed. These breaches are not trivial. They are not minor or technical defects; they go to the core of what the Regulations were designed to secure: procedural integrity, fairness and merit–based appointments. They represent a serious departure from the standards of objectivity, transparency, and accountability that underpin the constitutional and regulatory framework governing public service appointments. Where appointments are made outside those standards, the integrity of the service is compromised, and public confidence is eroded. In the absence of concrete prejudice under CPR 56.4, the ordinary consequence is that the Court must grant appropriate relief. To withhold such relief would dilute the Court’s supervisory jurisdiction and undermine the rule of law. [ 77 ]. For the reasons set out above, the Court finds that the Public Service Commission acted unlawfully in failing to adopt a transparent and fair process under Regulation 18 and in failing to demonstrate compliance with the mandatory criteria laid down in Regulation 19 of the Public Service Regulations. [ 78 ]. Accordingly, the Court grants a declaration that the process by which the appointments of Mrs. Deborah Alexander–Charles as Clerk of the House of Assembly and Mrs. Simone Williams–Huggins as Deputy Clerk of the House of Assembly were undertaken, was unlawful and contrary to Regulations 18 and 19. The Court further grants an order of certiorari quashing both appointments. [ 79 ]. On the question of costs, the Claimant has succeeded in establishing unlawful conduct on the part of the Commission and has obtained substantive relief in the form of both declaratory orders and certiorari. That success is not merely technical; it represents a vindication of the public interest in lawful, fair, and merit–based public service appointments. In judicial review, the general rule is that a successful claimant should recover her costs unless there is good reason otherwise, and no such reason has been shown here. [ 80 ]. In the circumstances, costs are awarded to the Claimant, summarily assessed in the amount of $10,000.00, to be paid by the Defendant. [ 81 ]. The claimant shall have carriage of the order after judgment. BY THE COURT REGISTRAR can presently be accommodated at His Majesty’s Prison. In those circumstances, and notwithstanding that not all grounds of appeal have succeeded, the Court considers it more appropriate to grant declaratory relief.

1.THE Government, acting as employer under a valid collective agreement, enjoys a managerial discretion to transfer non-established employees without their consent. However, that discretion is not unfettered and must be exercised within recognised 2 legal constraints. These authorities, read together, confirm that while the Government enjoys managerial discretion to transfer employees under the collective agreement, that discretion is not unfettered. It must be exercised in good faith, for proper administrative reasons, and consistently with the common law duty of fairness. Accordingly, the Government, acting as employer under a valid collective agreement, possesses the discretion to transfer a non-established employee without that employee’s consent, provided that the discretion is exercised honestly, in good faith, rationally, and in accordance with the principles of procedural fairness. Sections A6, C7 and K27 of the Labour Code Cap. 27 of the Laws of Antigua and Barbuda applied; Braganza v BP Shipping Ltd [2015] UKSC 17 applied; Claude Gerald v The Governor of Montserrat et al Territory of Montserrat Civil Appeal No. 2 of 2003 (delivered 29th March 2004, unreported) followed; Judy Benoit v Her Excellency the Governor-General Dame Cécile La Grenade and The Attorney General GDAHCV2022/0196 (delivered 11th October 2022, unreported) followed.

2.Although the power to transfer was correctly recognised by the trial judge, the central issue on appeal concerned not the existence of that power but the legality of the manner in which it was exercised. This Court accepts that the trial judge’s conclusion on power to transfer is correct, there being no provision which curtailed the Government’s discretion. The issue which nevertheless arises for this Court to determine is not merely whether the appellant was amenable to transfer, but whether the manner in which those transfers were effected complied with the requirements of legality and procedural fairness.

[1]HONOURABLE MINISTER OF PUBLIC SAFETY AND LABOUR

[2]THE ATTORNEY GENERAL Respondents Before: The Hon. Mde. Margaret Price Findlay Justice of Appeal The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal Appearances: Ms. Brenda Furlonge in person Ms. Joy Dublin and Ms. Alicia Aska for the Respondents __________________________ 2024: April 30; 2026: February 24. ___________________________ Civil Appeal – Judicial review – Public employment – Non established employee – Revocation of appointment and transfer to another ministry – Cabinet Decisions Nos. 105 and 106 – Whether the collective agreements applied to the appellant and were enforceable as contractual terms – Whether the learned judge erred in treating the collective agreements as applicable and enforceable – Sections K25 and K27 of the Antigua and Barbuda Labour Code – Management Clause and Government’s discretion to transfer non established employees without consent – Whether the Government’s discretion to transfer was constrained by good faith, rationality, and the duty to act fairly – Procedural fairness – Retrospective implementation of the Cabinet decisions -Short or absent notice – Lack of consultation and reasons – No meaningful opportunity to be heard – Whether the manner of implementation rendered the Cabinet decisions unlawful – Malice and victimisation – Whether a sufficient causal connection was established between the appellant’s complaint of sexual assault and the transfer decisions – Relief – Whether the 1 Cabinet decisions should be quashed or declared unlawful – Whether declaratory relief was appropriate – Damages. In an amended fixed date claim form filed on 25th March 2015 (“the Claim”), the appellant challenged Cabinet Decisions Nos. 105 and 106 dated 31st July 2014 by which the Government of Antigua and Barbuda purported to revoke her appointment as a Prison Officer and transfer her to the Clarevue Psychiatric Hospital as a Field Officer without her approval or consent. She contended that she had been employed by the Government in a non-established capacity from 1st June 2002. She also asserted that, prior to the impugned Cabinet decisions, she had been subjected to a series of indefinite transfers to other departments and assignments, which she disputed and maintained constituted breaches of her contract of employment. The appellant further contended that, as a non-established employee assigned to a specific post within a named department, she could not be permanently transferred to a new and different position in another department without her consent; that such transfer amounted to a new contract of employment with different duties and functions; that there was no express or implied term in her employment permitting transfer at will to a different position without consent; and that her employment was governed by the provisions of the Antigua and Barbuda Labour Code. Consequent to this, the appellant sought declarations that Cabinet Decisions Nos. 105 and 106 dated 31st July 2014 were null and void; an order of certiorari quashing those decisions; declarations that earlier temporary transfers constituted a breach of her contract of employment; an order permitting her to resume duties as a Prison Officer without loss of benefits; damages, including aggravated or vindicatory damages; and costs. By a judgment delivered on 21st February 2020, the learned judge found that the appellant’s employment was governed by the applicable collective agreements relating to non-established employees, in particular the Management Clause of the First Collective Agreement which conferred on the Government the sole right to manage its business, including the discretion to transfer non-established employees without their consent. The judge held that the appellant’s transfers, including those effected by Cabinet Decisions Nos. 105 and 106, were lawfully exercised within that discretion and did not constitute a breach of her employment rights. The claim for judicial review was accordingly dismissed. Being dissatisfied with that decision, the appellant filed a notice of appeal, later amended on 6th October 2020. The issues on the appeal concerned: (i) the applicability and enforceability of the collective agreements; (ii) the scope of the Government’s discretion to transfer non-established employees and the requirements of procedural fairness; and (iii) the lawfulness of transferring the appellant to a different position involving different duties and functions. Held: allowing the appeal in part; granting declaratory relief; setting aside the decision below; no award of damages; each party to bear its own costs.

3.A claim that the transfers were motivated by victimisation requires proof of a causal connection between the protected complaint and the impugned decision. The burden fell on the appellant to establish a causal connection between the transfers and her complaint. No such connection was demonstrated. No independent material capable of supporting the conclusion that the transfers were tainted by victimisation was produced, and the claim of victimisation therefore cannot be sustained. Moriba Baker v The University of Trinidad and Tobago Trinidad and Tobago Equal Opportunity Tribunal No. 004 of 2016 (delivered 19th November 2016, unreported) considered; Phonographic Performance Ltd v Ellis (t/a Bla Bla Bar) [2018] EWCA Civ 2812 followed.

4.Even where no retaliatory motive is established, the duty to act fairly remains operative. The absence of improper purpose does not relieve a decision maker of the obligation to comply with the requirements of natural justice. Notwithstanding the absence of a retaliatory motive, the decision maker is not absolved from the obligation to act fairly, and legitimate administrative reasons do not discharge the 3 duty to ensure that the process by which the transfers were effected was procedurally fair. Procedural fairness requires meaningful engagement with the affected employee before implementation of a prejudicial decision. The evidence shows that the appellant was notified of transfers on very short notice, with no indication that her objections were ever considered or that she was provided with any explanation prior to implementation. Such an absence of engagement or explanation demonstrates a clear breach of procedural fairness. Montrope v The Public Service Commission and The Attorney General of Saint Lucia SLUHCV2017/0385 (delivered 4th May 2018, unreported) distinguished; Judy Benoit v Her Excellency the Governor-General Dame Cécile La Grenade and The Attorney General GDAHCV2022/0196 (delivered 11th October 2022, unreported) followed.

5.The breach was compounded by the retrospective and immediate implementation of Cabinet Decisions Nos. 105 and 106. Those decisions were applied retrospectively and without prior notice and were implemented with such immediacy that genuine engagement was impossible. The appellant was deprived of any realistic opportunity to respond, and the retrospective implementation together with the absence of prior notice constitutes a breach of procedural fairness. Accordingly, the Court finds that Cabinet Decisions Nos. 105 and 106 were procedurally unfair and allows the appeal on this ground. It was the appellant’s inability to respond to the decisions which constituted the core breach of natural justice, and procedural fairness was therefore violated in respect of those decisions.

6.Where procedural unfairness is established, the appropriate public law relief is to reflect the nature of the unlawfulness found. In the present case, the appropriate relief ought to be declaratory in nature, as Cabinet Decisions Nos. 105 and 106 are vitiated by procedural unfairness. JUDGMENT

[1]PRICE FINDLAY JA: This appeal arises from the decision of the learned judge in the court below dated 21st February 2020 whereby the appellant’s claim for judicial review was dismissed.

[2]The proceedings below concerned the applicability and interpretation of two Collective Agreements, dated 5th May 2000 (the “First Collective Agreement”) and 31st December 2004 (the “Second Collective Agreement”) respectively, concluded 4 between the Government of Antigua and Barbuda (the “Government”) and the Antigua Trades and Labour Union and the effect of those Agreements on non-established employees.

[3]The learned judge found that the Government retained the sole right and function to manage its business, including the right to transfer non-established employees per the Management Clause of the First Collective Agreement. The claim for judicial review was accordingly dismissed. Background

[4]Ms. Brenda Furlonge, the appellant, had been employed by the Government of Antigua and Barbuda from 1st June 2002 as a Junior Prison Officer at Her Majesty’s Prison. Upon the commencement of her employment, the appellant was classified as a non-established employee.

[5]By Cabinet Decision No. 105 dated 31st July 2014, the appellant’s appointment as a Junior Prison Officer at Her Majesty’s Prison was revoked with effect from 15th July 2014. By Cabinet Decision No. 106 also dated 31st July 2014, she was transferred to the Ministry of Health as Field Officer – Training and Safety at Clarevue Psychiatric Hospital, also with effect from 15th July 2014.

[6]The appellant’s employment history prior to the 2014 Cabinet Decisions discloses a series of transfers. On 11th December 2007 she was temporarily assigned to the Central Board of Health pursuant to verbal instructions.

[7]On 27th February 2012, the Permanent Secretary of the Ministry of National Security and Labour issued a letter assigning the appellant to the Accounts Unit at the Ministry’s headquarters.

[8]On 21st January 2013, the Permanent Secretary of Health issued a further letter directing the appellant to report to Clarevue Psychiatric Hospital, pending the 5 outcome of an investigation into her working environment and its alleged adverse effect on her health.

[9]Thereafter, by Cabinet Decisions Nos. 105 and 106, the appellant was permanently transferred from her post at Her Majesty’s Prison to Clarevue Psychiatric Hospital. Both decisions were made retroactive to the date made. Judgment in the court below

[10]On 5th March 2015, the appellant filed an application for leave to apply for judicial review of Cabinet Decisions Nos. 105 and 106 effectively revoking her appointment as a Junior Prison Officer and transferring her to the Clarevue Psychiatric Hospital as a Field Officer. The appellant was granted said leave conditional upon the appellant filing a Fixed Date Claim for judicial review within 14 days of the order granting leave. The Fixed Date Claim form was filed on 25th March 2015.

[11]In the court below, the learned judge identified the singular issue for determination as whether or not Ms. Furlonge who was hired as a prison officer and classified as a “non-established employee” within the Ministry of Labour, Co-operatives and Public Safety could be transferred with or without her consent from Her Majesty’s Prison to any other Ministry.

[12]In a judgment delivered on 21st February 2020, the learned judge found that the appellant’s employment was captured by the Collective Agreements which governed non-established employees, in particular the First Collective Agreement’s Management Clause which states that the Government retained the sole right and function to manage its business, including the discretion to transfer non-established employees without their consent. The judge held that the appellant’s transfers, including those effected by Cabinet Decisions Nos. 105 and 106, were lawfully exercised within that discretion and did not constitute a breach 6 of her employment rights. The application for judicial review was accordingly dismissed, with no order as to costs. The appeal

[13]Being dissatisfied with the ruling of the High Court, the appellant filed a notice of appeal against the decision of the learned judge which was later amended on 6th October 2020. The appellant’s Amended Notice of Appeal asserts eight grounds of appeal, which are outlined as follows: “a. The Learned Judge misdirected herself as to the facts and the evidence when she either failed to consider and or take into proper account, the uncontroverted evidence of the Appellant that it was only after she had been sexually assaulted by a senior prison officer, and had made a complaint to her Employer, that she was ‘unceremoniously transferred out of the Prison’; in fact, no evidence was presented to the Court by the Respondents to refuse the employee’s statement that the employer conducted no thorough or proper investigation into such an egregious complaint and took no punitive action, whatsoever, against the senior officer reported to be involved. There, therefore provides clear and uncontroverted evidence of an act of malice and victimization by the employer, in having the employee transferred, against her will, which the Learned Judge failed to consider in coming to a decision in the matter. b. The Learned Judge erred in law when she failed to take in proper account of the fundamental principles of the Antigua and Barbuda Labour Code and good industrial relations practices in not coming to a finding of fact that the employer had acted out of malice and not out of necessity or the interest of public administration, when it took the unilateral decisions to transfer the employee from the prison to the central board of health and subsequently, to the Clarevue Psychiatric Hospital (without identifying any seating accommodate and/or duties), because of her complaint against the senior prison officer. c. The Learned Judge erred in law when she ignored the fact that non established government employee as is the case with all private sector employees – cannot be transferred at the whim and fancy of an employer and in particular without their expressed consent and/or core competencies in a ‘new’ area of employment. d. The Learned Judge erred when she failed to consider that no proper evidence was before the court to verify whether or not all clauses of the said Collective Agreement had been certified” as legal and of proper effect, as in accordance with section K25(1), (2) (a-e) and Section K27 (1) of the Antigua and Barbuda Labour Code. e. The Learned Judge erred when she reached a factual conclusion in the Judgment by way of inference but without proper consideration of facts, that the said Collective Agreements referred to in paragraph 22 of the Judgment, had been consistent with section K25 of the Labour Code. f. The Learned Judge misdirected herself on the evidence and the facts when she failed to consider that the employee was trained as a Prison officer and had no other particular skill set or other training or core competencies that would have adequately prepared her or make her a prime candidate for consideration for transfer to work in the Accounts Unit at the Central Board of Health and, ultimately, at the Clarevue Psychiatric Hospital, where she is not assigned any duties. g. The Learned judge misdirected herself in the matter when she failed to determine or consider, from the evidence at trial, that the Employer had, in fact, acted arbitrary, unlawful and without proper, or any consideration for the right of the employee, as enshrined in law and in accordance with good industrial relation practice, to be consulted in advance about any transfer or reassignment and for her to, ultimately, make a decision as to whether she should consent or otherwise, in accordance with her right as a citizen and employee. h. The Learned Judge erred when she ignored the submission/admission, of Senior Crown Counsel representing the Respondent at trial, that the Government does not have “an unfettered right” to transfer its non-established employees, as it does in the case of its established Employee (i.e. Civil Servants).”

[14]At the hearing of the appeal on 30th April 2024, this Court ordered that the parties file and serve supplemental submissions with authorities on ‘the legal basis upon which non-established employees can be transferred at will or involuntarily; and whether this issue is circumscribed by reference to the common law and/or other authorities, with particular emphasis on procedural grounds, including the duty to act fairly with respect to a transfer to an office below the current status of the employee.’

[15]The appellant’s grounds of appeal, while separately advanced, overlap in material aspects. For convenience, I shall address them under grouped headings, and not in the order in which they appear in the Notice of Appeal. Grounds d and e – The applicability and enforceability of the Collective Agreements

[16]It is convenient to begin with the question of whether the Collective Agreements applied to the appellant. This is a preliminary and determinative issue, for if the Collective Agreements did not extend to her, the respondents’ reliance upon them would lack any proper foundation. The appellant contended on this appeal that the learned judge erred in proceeding on the assumption that the Collective Agreements were applicable to her employment and further erred in treating them as having legal effect pursuant to sections K25 and K27 of the Antigua and Barbuda Labour Code (the “Labour Code”).1

[17]The appellant contended that the Collective Agreement does not apply to her because her position was not listed in Schedule 1 of the Agreement. That contention, however, does not withstand scrutiny. As the learned judge in the court below correctly held, the mere absence of a particular position from a list does not, of itself, exclude an employee from the scope of a collective agreement. The learned judge relied on Sundry Workers v Attorney General of Antigua and Barbuda,2 which endorsed the approach taken by Remy J in Antigua Trade and Labour Union v The Attorney General of Antigua and Barbuda.3 Those authorities confirm that where parties have proceeded on the basis of a settled course of conduct between the parties recognising coverage, it would be unconscionable to hold that positions or a category of workers not explicitly listed in a collective agreement were excluded. The learned judge in the court below 3 ANUHCV2011/0201 (delivered 18th June 2012, unreported). 2 Antigua and Barbuda Industrial Court Reference No. 12 of 2017 (delivered 26th August 2019). 1 Cap 27 of the Laws of Antigua and Barbuda. adopted the same reasoning, noting that the absence of a position from a list or from any other document identifying categories of workers does not, in practice, determine the question of coverage.

[18]The appellant further contended that her employment is governed by the Labour Code. That proposition was not disputed. The respondents accepted that the appellant’s employment is indeed subject to the Labour Code while maintaining that her employment was also subject to the applicable Collective Agreements. There is no inconsistency in that position.

[19]The more substantial issue raised under these grounds concerns the legal enforceability of the Collective Agreements. The appellant submitted that there was no evidence before the court below that the Collective Agreements had been certified by the Labour Commissioner’s stamp and that they are inconsistent with the terms of the Labour Code and consequently, the Collective Agreements are a nullity. The appellant refers to section K25 of the Labour Code which as far as is relevant states: “(1) With respect to all collective agreements filed by trade unions under section G20 it shall be the duty of the Labour Commissioner, acting through the Labour Relations and the Statistical Services of the Labour Department, to analyze said agreements for whatever information may be derived with respect to the employment conditions of workmen covered by collective agreements. (2) (i) With respect to all collective agreements filed by registered bargaining agents under section H8 (9) it shall be the duty of the Labour Commissioner, acting through the Labour Relations Service, to analyze said agreements to ensure that the provisions thereof are not inconsistent with the provisions of this Code. …. (v) Should he find no inconsistency with the Code in the collective agreement as originally submitted, or as resubmitted from time to time under paragraphs (iii) and (iv), he shall certify that the collective bargaining agreement is a lawful contract in all respects.”

[20]It is also useful to set out section K27 which states as follows: “(1) Every collective agreement between registered bargaining agents which has been certified as a lawful contract under the provisions of 10 section K25 (2) shall thereupon be a legally enforceable contract to the extent the parties thereto intended it to be enforceable, as noted in section K26.”

[21]The threshold obstacle to the appellant’s challenge on enforceability is that she did not raise the issue of non-certification in the court below. It is well-established that an appellate court cannot be invited to consider arguments not pursued before the court of first instance. As Henry JA observed in Zinna Zimbanni (as Personal Representative of the Estate of Adelaide Joseph, deceased) v Compultron:4 “[70] The problem that learned counsel faces is that by her submissions she has invited this Court essentially, to formulate causes of action… She asks the Court to do so merely by reference to vague and speculative assertions in the pleadings… It is trite that fraud… must be expressly pleaded… the court cannot consider [it] unless it is expressly pleaded… Moreover, it is notoriously known that a litigant will not be permitted to introduce at the appellate level issues which were not before the lower court.”

[22]Accordingly, in circumstances where the appellant did not challenge the enforceability of the Collective Agreements in those proceedings, it was both legally sound and procedurally appropriate for the learned judge to proceed on the presumption that the Collective Agreements were enforceable despite not being duly certified. The appellant cannot now seek to advance this point for the first time on appeal.

[23]In any event, even if the point was properly before this Court, there was no evidence before the court below establishing whether the Collective Agreements had or had not been certified pursuant to section K25. No certification stamp was produced, nor was there any affirmative evidence addressing the issue one way or another. The learned judge therefore proceeded in the absence of any clear evidential foundation on certification.

[24]In those circumstances, the correct starting point is the common law position. At common law, a collective agreement is presumed not to be legally enforceable as 4 SLUHCVAP2019/0017 (delivered 10th January 2022, unreported). between employer and employee unless there is cogent evidence that the parties intended it to have contractual effect. That principle was authoritatively stated in Ford Motor CO Ltd v Amalgamated Union of Engineering and Foundry Workers,5 where it was held that collective agreements are ordinarily intended to regulate industrial relations rather than to create legally contractual obligations, absent clear evidence to the contrary.

[25]Accordingly, in the absence of clear evidence of certification under section K25, the enforceability of the Collective Agreements could only be properly established by demonstrating a contractual intention to be bound. That inquiry necessarily turns on the terms of the appellant’s contract of employment and the surrounding circumstances.

[26]On the evidence before the court below, the learned judge was entitled to conclude that such intention existed. The appellant’s contract expressly incorporated the terms and conditions of the applicable Collective Agreement. That express incorporation constituted cogent evidence that both parties intended the Collective Agreement to regulate their legal relationship. On that basis, the Collective Agreements were enforceable as contractual terms, irrespective of the unresolved question of statutory certification.

[27]Moreover, the enforceability of these very Agreements in the absence of proof of certification has already been affirmed in Antigua Trade and Labour Union v The Attorney General of Antigua and Barbuda,6 where Remy J observed that: “…the fact that a (previous) Labour Commissioner has signed the Collective Bargaining Agreement … combined with the fact that the Claimant has been paid monies by the Government Treasury … created or encouraged a belief on the part of the Claimant that it was entitled to act as the sole bargaining agent” 6 ANUHCV2011/0201 (delivered 18th June 2012, unreported) at paragraph 40. [1969] 2 All ER 481.

[28]Also significant was the fact that there is no evidence that the Labour Commissioner has taken any steps to “decertify” the Union. The learned judge as a result concluded that in the absence of the Labour Commissioner’s official announcement that the Union, which has been acting as sole bargaining agent, has been “decertified”, it was entitled to continue to hold the view that it represented the Non-Established Workers of Antigua and Barbuda as their sole bargaining agent.

[29]In those circumstances, the learned judge was entitled to proceed on the basis adopted. Her decision not to revisit the issue of certification was entirely proper, particularly where the appellant had not raised any challenge to certification in the proceedings below and now seeks to advance that point for the first time on appeal. It is well established that an appellate court will not entertain arguments that were not pursued before the court of first instance. In any event, and as a complete answer to the appellant’s submission, the terms of the appellant’s contract of employment clearly demonstrated an intention to be bound by the provisions of the applicable Collective Agreement. Grounds c, g and h – Scope of the Government’s discretion to transfer and procedural fairness

[30]Before the Court of Appeal, the appellant advanced three principal contentions. First, that the respondent acted ultra vires in purporting to transfer her between departments without statutory or contractual authority. Secondly, the transfer was without lawful basis and consequently void. Thirdly, the process adopted in effecting the transfer was procedurally unfair, in that the appellant was not notified nor afforded an opportunity to be heard. These grounds were not pursued in this form before the court below. During the hearing of the appeal, however, the Court considered that the question of procedural fairness required further ventilation, and accordingly directed that supplemental submissions be filed by both parties addressing the legal basis upon which non-established officers might be 13 transferred at will or without consent, and whether the exercise of such a discretion is circumscribed by the common-law duty to act fairly.

[31]The appellant’s contentions thus extended beyond the bare existence of a power to transfer and encompassed the manner of its exercise. The allegation of want of notice and opportunity to be heard raised a distinct question of procedural fairness. These are separate though related inquiries: the issue of authority concerns the lawfulness of the act itself, whereas procedural fairness engages the safeguards that govern the exercise of that authority.

[32]Procedural fairness constitutes an independent ground of judicial review and is not ancillary to questions of legality. Although not argued below, the issue has now been brought squarely into focus by the Court’s own direction for further argument. The Court invited submissions as to whether the legal foundation upon which non-established officers may be transferred at will or involuntarily is constrained by reference to the common law or analogous principles, with particular emphasis on the duty to act fairly where the transfer results in diminution of status or conditions of employment. Appellant’s submissions

[33]The appellant contended that, as a matter of common law and fundamental principle, an employer cannot transfer a member of the workforce against his or her will, for only a person in a state of servitude could be compelled to serve elsewhere without consent. It was submitted that, in the case of Government employment, such power exists only in respect of Civil Servants, members of the Police Force, the Military, and the Diplomatic Corps.

[34]The appellant further submitted that although it is well established that the Government possesses the power to transfer any civil servant or established officer without consent, that principle does not extend to non-established employees. 14

[35]It was argued that there is no express or implied term in the appellant’s contract of employment, as a non-established government employee, permitting her to be transferred at will to another post involving different duties or functions without her consent. The appellant is not appointed to public office and does not fall within the definition of “civil servant” as set out in section 3(2) of the Civil Service Act7. Accordingly, she cannot lawfully be transferred at will. Her employment, it was submitted, is governed by the provisions of the Labour Code, and by the industrial agreements negotiated by the Antigua Trades and Labour Union on behalf of non-established employees of the public service. Respondents’ submissions

[36]The respondents submitted, and the learned trial judge so found, that to deprive the Government of its discretion to transfer employees would lead to an untenable position within the public service. It was observed that such a restriction would enable employees to determine for themselves whether, or to what post, they would consent to be transferred, thereby frustrating the efficient administration of the service.

[37]In their supplemental submissions, the respondents drew attention to a number of decisions within the region concerning transfers in the public sector undertaken to promote efficiency and to deploy human resources where most required. Reference was made to Shields Furniture Ltd v Goff,8 in which it was held that employees subject to transfer were entitled only to a reasonable opportunity to consider whether to accept a variation of employment arising from reassignment. Reliance was also placed on The Public Service Union v The Permanent Secretary, Ministry of National Security,9 where the court upheld a transfer intended to avoid a conflict of interest after the officer’s son had been committed to 9 Claim No. 0175 of 2007 (dated 10th January 2010, unreported). [1973] ICR 187. 7 Cap 87 of the Laws of Antigua and Barbuda. custody. Further reliance was placed on Dornella Seth v Attorney General,10 in which the claimant, a non-established worker, alleged that her transfer was oppressive and arbitrary. The court there observed that a transfer effected without a written statement of duties might constitute a breach of contract but dismissed the claim upon finding that the defendant’s action was neither arbitrary nor oppressive.

[38]The respondents submitted that these authorities illustrate that transfers within the public service fall within the discretion of the Government as employer and are not dependent upon the concurrence or participation of the employee. Discussion

[39]The first sub-issue can be disposed of fairly easily. The appellant contended that, as a non-established employee, she could not lawfully be transferred without her consent. This argument, however, is unsustainable when the statutory and contractual framework governing the employment relationship is properly considered.

[40]First and foremost, the relationship between the parties is governed by the provisions of the Labour Code. Section A6 draws a clear distinction between established and non-established employees of the Government and defines the extent to which the provisions of the Labour Code apply to each category. Section A6 provides: “A6. (1) To the extent that provisions of this Code apply to employers, they shall apply to all employers operating or doing business in Antigua and Barbuda, including the Government as the employers of its established employees; but they shall not bind the Government as the employer of its other employees. (2) To the extent that provisions of this Code apply to employees, they shall apply to all employees of employers operating or doing business in 10 SVGHCV2018/0086 (dated 5th July 2018, unreported). Antigua and Barbuda, including the non-established employees of the Government; but they shall not apply (a) established employees of the Government; (b) persons in the naval, military, or air forces of the Government; (c) the Police Force; (d) persons holding the status of diplomatic agents; or (e) persons employed by the United Nations or its specialised agencies.”

[41]By virtue of section A6(2), the appellant, as a non-established employee of the Government, is expressly brought within the category of employees to whom the Labour Code applies. Her employment relationship is therefore governed by the statutory regime established by the Labour Code, and any analysis of her rights and obligations must proceed on that basis.

[42]The Labour Code itself contains no provisions which expressly regulate the transfer of employees or require employee consent to such transfers. Likewise, the appellant’s individual contract of employment does not address transfers nor confer any contractual right to refuse them. In those circumstances, the appellant’s contention finds no support in either the Labour Code or her individual contract of employment, and the analysis accordingly turns to the Collective Agreements governing her employment, which make express provision in relation to transfers.

[43]The legal effect of collective agreements is addressed in section K27 of the Labour Code, which provides: “K27. (1) Every collective agreement between registered bargaining agents which has been certified as a lawful contract under the provisions of section K25(2) shall thereupon be a legally enforceable contract to the extent the parties thereto intended it to be enforceable, as noted in section K26. (2) Such contracts to the extent intended to be enforceable, shall be enforced in the Courts in the same manner as any other enforceable contracts.” (Emphasis added).

[44]The effect of this provision is to recognise that the rights and obligations of non-established employees are derived from, and governed by, the terms of the 17 collective agreement once duly certified, subject to the overriding requirements of the Labour Code. In that regard, section C7 makes clear that while individual contracts of employment may be lawfully entered into, any provision which falls below the minimum employment standards established by the Labour Code, or which, to the employee’s disadvantage, conflicts with the terms of a collective agreement in force, is rendered null and void. It follows that the relationship between the Government and such employees is one regulated by a binding contractual instrument, not merely by the general principles of common-law employment upon which the appellant seeks to rely.

[45]The appellant’s attempt to draw a rigid distinction between established and non-established employees, and to limit the power of transfer to the former, finds no support in principle or in authority. The relationship between the Government and a non-established employee is contractual in nature, and the rights and obligations of the parties are governed by the terms of that contract. Where those terms are embodied in a collective agreement having statutory effect, the Court’s duty is to give effect to that bargain according to its tenor. It is not for the Court to imply restrictions which the parties themselves have not chosen to include.

[46]As observed in Braganza v BP Shipping Ltd11, contractual provisions which confer a discretion upon one party are common, and: “It is not for the courts to re-write the parties’ bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest… The courts have therefore sought to ensure that such contractual powers are not abused… not only must the discretion be exercised honestly and in good faith, but… it must not be exercised arbitrarily, capriciously or unreasonably.”

[47]The same principle applies where the discretion arises under statute or the Constitution. In Claude Gerald v The Governor of Montserrat et al.,12 this Court 12 Montserrat Civil Appeal No. 2 of 2003 (delivered 29th March 2004, unreported). [2015] UKSC 17. accepted that the Governor possessed legal power to transfer Mr. Gerald but held that procedural deficiencies rendered the transfer unlawful. The Court declared the transfer null and void, confirming that the Governor’s discretion, though wide, must be exercised in accordance with the principles of legality and fairness.

[48]Likewise, in Judy Benoit v Her Excellency the Governor-General Dame Cécile La Grenade and The Attorney General,13 the Governor-General’s constitutional power to remove the Supervisor of Elections “at her sole discretion” was found to be constrained by the duty of procedural fairness. The Court observed that: “The principles of fairness dictated that Ms Benoit ought to have been afforded a reasonable opportunity to address those complaints or allegations prior to the decision being taken to remove her.”

[49]While the Court notes that the Judy Benoit case merely serves as a persuasive authority, the Court is of the view that the principles enunciated and applied in that case are just as applicable in the instant case. These authorities, read together, confirm that while the Government enjoys managerial discretion to transfer employees under the collective agreement, that discretion is not unfettered. It must be exercised in good faith, for proper administrative reasons, and consistently with the common-law duty of fairness.

[50]Accordingly, this Court finds that the Government, acting as employer under a valid collective agreement, possesses the discretion to transfer a non-established employee without that employee’s consent, provided that the discretion is exercised honestly, in good faith, rationally, and in accordance with the principles of procedural fairness. Procedural Fairness Appellant’s submissions 13 GDAHCV2022/0196 (delivered 11th October 2022, unreported).

[51]The appellant relies on the constitutional guarantee of procedural fairness, contending that in arriving at its decision to revoke her appointment and to effect her transfers, the Cabinet was bound to observe and comply with the rules of natural justice. It is submitted that the respondent acted in breach of those principles by failing to give reasons for its decisions. At no time, it is said, was the appellant informed of the grounds upon which her appointment was revoked or of the reasons for her subsequent transfers. The appellant further asserts that the transfers were not grounded in any proper administrative purpose but were actuated by victimisation, being connected to her report of sexual assault by a senior officer. To be real and effective, it must include the right of the affected person to know the case made against her, to be apprised of the material and statements relied upon, and to be afforded a fair opportunity to correct or contradict them. It was further contended that compliance with procedural fairness in this context necessarily required prior consultation, an opportunity to make representations, and the provision of reasons sufficient to enable the appellant to understand the basis of the decision and, if necessary, to challenge it. Respondents’ submissions

[52]On the issue of procedural unfairness, the respondents submitted that one transfer was effected in response to concerns raised directly by the appellant regarding her working environment, and that a subsequent transfer arose from the potential conflict between her duties as a prison officer and the incarceration of her son within the same facility. It was contended that the allegation of victimisation is without foundation and that the appellant suffered no adverse consequence as a result of the transfers, noting in particular that there was no diminution of salary or rank.

[53]The respondents relied on the decision in Moriba Baker v The University of Trinidad and Tobago,14 in which the Court held that the claimant had failed to 14 Trinidad and Tobago Equal Opportunity Tribunal No. 004 of 2016 adduce credible evidence establishing a connection between his dismissal for disciplinary reasons and the lodging of a complaint. By analogy, the respondents argued that the appellant in this case has not produced credible evidence linking her transfer to the complaint of sexual harassment made against her supervisor. It was submitted that each transfer was undertaken for legitimate administrative reasons and with the intention of ensuring that the appellant’s working conditions remained satisfactory. However, the respondents did not directly address the procedural aspect of the transfers, particularly whether the appellant was afforded an opportunity to respond or to be heard prior to the decision being made. Discussion

[54]The issue determined by the court below concerned the lawfulness of the transfers of the appellant on 11th December 2007 to the Central Board of Health and subsequently to the Accounts Unit in the Ministry of National Security, and on 31st July 2014 to the Clarevue Psychiatric Hospital, in particular, whether the transfers could lawfully have been made in the Government’s sole discretion. The learned judge dismissed the appellant’s claim for judicial review of the decisions transferring her. Although that conclusion is challenged on this appeal, this Court accepts that it is correct, there being no provision in the Labour Code, the appellant’s contract of employment, or the applicable collective agreement which curtailed the Government’s discretion to effect those transfers. The issue which nevertheless arises for this Court to determine is not merely whether the appellant was amenable to transfer, but whether the manner in which those transfers were effected complied with the requirements of legality and procedural fairness. It is to that question I now turn.

[55]With respect to the issue of legality, the appellant claims that her transfer to the Clarevue Psychiatric Hospital was as a result of victimisation borne out of her complaint of sexual assault/harassment by a senior prison officer. The Tribunal in Moriba Baker cited above made clear that such a claim cannot succeed in the 21 absence of a credible evidential connection between the alleged act of victimisation and the protected act giving rise to the complaint. Therefore the burden fell on the appellant to establish a causal connection between the transfers and her complaint of sexual assault. In the present case, no such connection was demonstrated. Beyond reliance on the chronology of events and the appellant’s own assertions, no evidence was adduced from which an inference of retaliatory motive or malice could properly be drawn. The appellant’s account stood entirely uncorroborated, and there was no independent material capable of supporting the conclusion that transfers were tainted by victimisation. In those circumstances, the evidential threshold identified in Moriba Baker was not met, and the claim of victimisation therefore cannot be sustained.

[56]However, notwithstanding the absence of a retaliatory motive, the decision-maker is not absolved from the obligation to act fairly. Likewise, the fact that there may have been legitimate administrative or operational reasons for certain transfers does not, in itself, discharge the duty to ensure that the process by which those transfers were effected was procedurally fair.

[57]The evidence shows that the appellant was notified of transfers on very short notice, in some instances on the same day or the day prior to effect. Although she expressed objections, there is no indication that her objections were ever considered or that she was provided with any explanation before implementation. Such an absence of engagement or explanation demonstrates a clear breach of procedural fairness, even if the underlying motive was administratively legitimate.

[58]This is readily distinguishable from authorities such as Montrope v The Public Service Commission and The Attorney General of Saint Lucia.15 That case is not relied upon for its jurisdictional equivalence but rather as an illustration of what procedural fairness in this context ought to look like. There, the Public Service Commission engaged in a sustained process of communication with the officer 15 SLUHCV2017/0385 (delivered 4th May 2018, unreported). over several weeks. The officer was invited to make representations, provided with reasons for the proposed transfer, afforded the opportunity to seek clarification, and received responses showing that his objections were expressly considered. Although the officer ultimately disagreed with the decision, the Court found that he had nonetheless been afforded a meaningful opportunity to be heard.

[59]By contrast, the circumstances in the present matter are materially different. Cabinet Decisions No. 105 and No. 106 were applied retrospectively and without prior notice, and the transfers were implemented with such immediacy that genuine engagement was impossible. The appellant was deprived of any realistic opportunity to respond or to make representations in advance.

[60]The retrospective implementation of Cabinet Decisions No. 105 and No. 106, together with the absence of prior notice and the practical impossibility of engagement, constitutes a breach of procedural fairness. This aligns with the principle in Benoit, where the individual was effectively precluded from addressing a prejudicial decision prior to its implementation.

[61]Accordingly, the Court finds that Cabinet Decisions No. 105 and No. 106 were procedurally unfair and allows the appeal on this ground. By way of obiter, the Court notes that the other transfers, though also effected rapidly and contested by the appellant, involved some degree of explanation or post-transfer engagement. Nevertheless, even in those instances, the extremely short notice periods raise concerns as to whether the appellant could effectively be heard. While the Court rejects the allegation of victimisation as unsupported by evidence, it nevertheless finds that the process by which the transfers were effected fell short of the procedural standards required by natural justice. Even in instances where explanations were provided, the extremely short notice periods rendered effective participation impossible, revealing a systemic deficiency in procedural fairness across the series of decisions. This conclusion, however, is not intended to suggest that every government transfer must be preceded by lengthy notice and 23 sustained and prolonged engagement with the officer concerned. The learning that ought to be derived here is that what would constitute a reasonable period of the notice and/or consultation period, must be determined by the factual circumstances in each case.

[62]Where notice is inadequate and meaningful engagement impossible, the exercise of discretion crosses the threshold into procedural unfairness. In the present case, it was the appellant’s inability to respond to the decisions, rather than any retaliatory motive, which constituted the core breach of natural justice. The Court therefore confirms that procedural fairness was violated in respect of Cabinet Decisions No. 105 and No. 106 and identifies broader concerns as to the adequacy of notice and engagement across the other transfers, while affirming that no evidential link has been shown between the transfers and the complaint of sexual assault.

[63]Having made the foregoing findings, the Court turns to the question of relief. While procedural unfairness has been established, it does not follow that every form of relief sought by the appellant must be granted. The remedies available in public law proceedings are discretionary and must be tailored to the nature of the unlawfulness identified. In the present case, the breach arises from a failure of process rather than from any improper motive or deliberate abuse of power. In those circumstances, the Court must consider whether relief beyond a declaration is justified, including whether any award of damages is properly available.

[64]In considering whether any award of damages is properly available, the Court notes that general and aggravated damages are sought in the Fixed Date Claim Form, however the supporting affidavit does not plead or particularise the basis upon which such damages are claimed. The affidavit filed in support of the Fixed Date Claim Form merely refers to the affidavit filed in support of the application for leave to seek judicial review. That earlier affidavit does not advance any pleaded case of loss or damage. 24

[65]As to an award for aggravated damages, Lewinson LJ in Phonographic Performance Ltd v Ellis (t/a Bla Bla Bar)16 stated: “Aggravated damages are damages awarded for a tort as compensation for the claimant’s mental distress, where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent to the tort, has upset or outraged the claimant. Such conduct or motive aggravates the injury done to the claimant, and therefore warrants a greater or additional compensatory sum.”

[66]The evidence in this case discloses no improper motive or deliberate abuse of power, but rather a failure to afford the appellant sufficient time and opportunity to respond. Moreover, the appellant remained in receipt of her full salary and benefits throughout, and there is no suggestion of any material diminution in rank or remuneration. In those circumstances, and in the absence of any evidence from which loss could be identified or quantified, the Court is unable to assess quantum or to make any award of compensation. Accordingly, the Court is of the view that the appropriate relief ought to be declaratory in nature, to reflect that the appellant’s right to procedural fairness was infringed and that Cabinet Decisions Nos. 105 and 106 are vitiated by procedural unfairness. Grounds c and f – Transfer to a different position

[67]The appellant contended that she could not be permanently transferred to a new and different position in another department without her consent. Implicit in this argument is the assumption that any transfer should be to a position equivalent in responsibility, status, and remuneration, skill and competency.

[68]The Collective Agreement governing the appellant’s employment confers upon the respondent a broad discretion in relation to the transfer of employees. It does not, in express terms, condition the exercise of that discretion upon the maintenance of equivalence in the post. By way of comparison, there are instances where in 16 [2018] EWCA Civ 2812. employment contracts it is common to include express terms providing that transfers must be to posts of equivalent grade or responsibility, as observed in Rachel Glenna M. Roberts v The Public Service Commission.17 In that case, the court considered whether a transfer could be unconstitutional due to the absence of an assigned office or an equivalent position. The court, referencing Blenman JA in Bain-Thomas, emphasised that the assessment of equivalence extends beyond remuneration to include responsibility, status, rank in the public service hierarchy, challenges inherent in the post, and qualifications.

[69]These authorities seem to reflect the position in common law that the concept equivalence may be relevant when assessing the lawfulness of a transfer. Additionally, those authorities illustrate that, at common law, a transfer which results in a material alteration of an employee’s status or conditions may attract closer scrutiny. The present case is, however, distinguishable in that the Collective Agreement expressly vests the employer with a wide discretion in relation to transfers, including reassignment to different roles.

[70]Bearing the foregoing findings of this Court as to the procedural fairness of the appellant’s transfer in mind, it is neither necessary nor appropriate in this appeal to determine definitively whether, or to what extent, the common law requirement of equivalence operates where such contractual arrangements exist. In fact, had the appellant been afforded reasonable notice and opportunity to be heard, this issue may have arisen for consideration in a different procedural context. However, that hypothetical scenario does not arise on the present appeal, which is properly resolved on procedural grounds alone.

[71]It follows that the appellant’s contention that any transfer must, as a matter of law, be to a position of equivalent status does not require final determination in these proceedings. Even if the authorities may be said generally to support such a proposition, the appeal may be resolved on other grounds. In particular, the 17 GDAHCV2019/0116 (delivered on 1st July 2022; re-issued on 18th July 2022, unreported). manner in which the transfers were effected deprived the appellant of the opportunity to make representations as to the nature and suitability of the positions to which she was assigned, a matter which bears directly on the lawfulness of the decisions under challenge. Disposition

[72]Having considered the submissions and the record, the Court is of the view that procedural fairness was not observed in respect of Cabinet Decision No.105, which revoked the appellant’s appointment, and Cabinet Decision No.106, which effected her transfer. By reason of that breach of natural justice, both decisions are thereby void in law. The appeal is therefore allowed. This Court, however, is mindful that setting aside those decisions outright would carry practical and administrative consequences, particularly in circumstances where the Court does not have the benefit of up to date information as to whether the appellant remains in her post or1 THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (Civil Division) SAINT VINCENT AND THE GRENADINES CLAIM NO. SVGHCV2023/0165 BETWEEN: CELENA MCDONALD Claimant AND THE PUBLIC SERVICE COMMISSION Defendant Before: The Hon. Mde. Cybelle Cenac-Dantes (Ag.) Judge of the High Court Counsel on Record: Shirlann Barnwell with Jomo Thomas counsel for the claimant, Tonya DaSilva led by Senior Counsel Douglas Mendes via zoom counsel for the defendant —————————————- 2025: 18 March 30 April (final submissions) 4 December —————————————- DECISION ON THE PAPERS Introduction and Background [ 1 ]. Cenac Dantes, J.: This is a claim for judicial review brought by the Claimant, Ms. Celena Mc Donald, pursuant to Part 56 of the Civil Procedure Rules 2023. The claim is directed against the Public Service Commission (“the PSC”) and concerns the legality of two decisions made by the PSC in relation to appointments within the Parliament Department of the Government of Saint Vincent and the Grenadines. [ 2 ]. The impugned decisions are: (a) the appointment of Mrs. Deborah Alexander Charles to the post of Clerk of the House of Assembly; and (b) the promotion and appointment of Mrs. Simone Williams Huggins to the post of Deputy Clerk of the House of Assembly. [ 3 ]. The Claimant, a long–serving public officer who acted in both positions at various times and who contends that she was eligible for substantive promotion, challenges both appointments on the basis that the PSC failed to adhere to the constitutional and statutory requirements governing appointments in the public service. [ 4 ]. The claim is grounded upon alleged breaches of Regulation 18 and Regulation 19 of the Public Service Commission Regulations (2009 Revised Edition), which form part of the constitutional framework regulating the exercise of the Commission’s appointment and promotion functions. [ 5 ]. The Claimant contends that the PSC acted: (a) in breach of Regulation 18, by failing to advertise the vacancies or otherwise give proper notice of the posts, thereby denying eligible officers, including the Claimant, a fair opportunity to be considered; (b) in breach of Regulation 19, by failing to properly assess the statutory criteria of seniority, experience, educational qualifications, merit, ability, and relative efficiency; (c) unreasonably, by taking into account irrelevant considerations, such as the possession of a law degree and failing to consider relevant ones; (d) in a procedurally improper and unfair manner, with the result that the Claimant was unlawfully excluded from consideration for either post; and (e) in a manner giving rise to apparent bias, particularly in the context of the Commission’s refusal to afford transparency in the selection process. [ 6 ]. On these bases, the Claimant seeks: (i) Declarations that the appointments of Mrs. Alexander–Charles and Mrs. Williams–Huggins were unlawful and null and void; (ii) Declarations that the PSC’s failure to advertise the posts violated Regulation 18 and the principles of transparency and fairness; (iii) Declarations that the PSC failed to apply the mandatory criteria prescribed by Regulation 19; and (iv) Orders of certiorari to quash both appointments. [ 7 ]. The Defendant denies that it acted unlawfully, contending inter alia that the appointments were properly made in accordance with the Regulations, that there was no requirement to advertise the posts in the circumstances, and that the Claimant’s challenge suffers from procedural bars, including unreasonable delay, non–joinder of necessary parties, and the absence of prejudice. [ 8 ]. The matter proceeded to trial on the papers, with no cross–examination of witnesses, and was determined on the basis of the agreed statement of facts, witness statements, and written submissions filed by both parties. Preliminary Issues Objection to Portions of the Defendant’s Witness Statements [ 9 ]. The Claimant, in her written submissions filed on 28th August 2024, raised objections to portions of the witness statements filed on behalf of the Defendant, particularly those of Arlene Regisford-Sam and Stephen Williams, arguing that certain assertions ought to be struck out on the basis that they amounted to hearsay or otherwise lacked documentary substantiation. The Claimant contended that these statements represented conclusions or matters of opinion and did not comply with the evidentiary standards expected of witness statements in judicial review proceedings. [ 10 ]. Having considered the substance of the Claimant’s submissions, I do not accept that the impugned statements should be struck out. The appropriate stage for raising evidentiary objections, particularly of the nature advanced here, is at case management, not at the stage of final submissions. The record reveals that no application was made to strike out or exclude any part of the Defendant’s witness statements during the case management process, nor at any time thereafter. [ 11 ]. It is of further note that at the Pre-Trial Review held on 14 June 2024, both parties expressly agreed that the matter would proceed on the papers and that there would be no cross-examination of witnesses. While it is open to the Court to consider objections to the admissibility or weight of evidence even at a late stage, it is procedurally improper for a party, having foregone earlier opportunities for objection, and having consented to a decision on the written record to seek to challenge evidence in closing submissions. This is especially so where no cross-examination was undertaken, and where the Court had made provision, through prior directions for any such objections to be ventilated. [ 12 ]. Moreover, I am satisfied that the impugned portions of the witness statements, particularly those made by Ms. Arlene Regisford-Sam, the Chief Personnel Officer, who also sits ex officio as a member of the Public Service Commission, reflect facts within her personal knowledge and are admissible. Her witness statement is not based on second-hand accounts but arises from her institutional role and involvement in the matters under challenge. There is no merit to the contention that her evidence amounts to inadmissible hearsay or speculation. Scope of the Challenge under Regulation 18 [ 13 ]. The Defendant in its written submissions filed on 10th December 2024 contends that the Claimant’s pleaded case was confined to Regulation 18(1) only, and that the attempt in her submissions to rely on Regulation 18(2) amounts to an impermissible broadening of the claim beyond the fixed-date claim form and supporting evidence by way of witness statement. [ 14 ]. I do not accept the Defendant’s contention on this point. It is evident from the Fixed Date Claim Form filed on 11 October 2023, and the supporting witness statement of the Claimant, that the complaint was broadly framed as one concerning the PSC’s failure to advertise the posts of Clerk and Deputy Clerk and to conduct a transparent and fair selection process. The Claimant specifically pleads that the PSC violated “Regulation 18 of the Public Service Commission Regulations” without restriction to subsection (1). [ 15 ]. Further, the Agreed Statement of Facts and Issues filed on 28 March 2024 includes among the agreed issues for determination the question of whether “the PSC acted in breach of Regulation 18 by failing to advertise the vacancies for Clerk and Deputy Clerk of the House of Assembly” without limiting the scope to subsection (1). Both parties’ submissions also addressed the two-tiered structure of Regulation 18, with reference to Regulation 18(1) (which governs notice to internal candidates) and Regulation 18(2) (which governs when and how the PSC may advertise externally where no suitable internal candidates are available). [ 16 ]. On the whole of the record, I find that the challenge under Regulation 18 was not confined to subsection (1) but encompassed the entirety of the Regulation. The Defendant had ample opportunity to respond to this aspect of the case and did so in its written submissions. No prejudice arises from treating the challenge as having been made under both subsections of Regulation 18, and it would be inconsistent with the overriding objective to construe the pleadings unduly narrowly in the context of a Part 56 claim where the issues were clearly joined and canvassed in full. Issues for Determination [ 17 ]. In light of the pleadings, submissions, and the Agreed Statement of Facts and Issues filed by the parties, the questions for determination, as reframed by the Court, are as follows: (i) Whether the PSC acted in breach of Regulation 18 of the Public Service Regulations by failing to advertise the vacancies for Clerk and Deputy Clerk of the House of Assembly, and whether such failure renders the appointments unlawful. (ii) Whether the PSC acted in breach of Regulation 19 of the Public Service Regulations by failing to consider the proper criteria of merit, ability, and seniority when appointing Mrs. Alexander–Charles as Clerk and Mrs. Williams–Huggins as Deputy Clerk of the House of Assembly, or alternatively, failed to consider relevant factors in its decision. (iii) Whether the impugned decisions were unlawful on grounds of unreasonableness, procedural impropriety, or apparent bias, in that the PSC took into account irrelevant considerations, failed to take into account relevant considerations, or otherwise failed to conduct a fair and transparent process. While this ground does not appear expressly in the Fixed Date Claim Form or in the Agreed Statement of Issues, it has been raised and developed throughout the Claimant’s affidavit evidence, written submissions, and Reply submissions, and were addressed in substance by the Defendant in its own submissions. In particular, the Claimant contends that the PSC gave undue weight to factors such as possession of a law degree, an irrelevant consideration under the governing Regulations, and failed to properly assess statutory criteria such as seniority, merit, and experience. She further asserts that the process was tainted by procedural unfairness and apparent bias, resulting in her unlawful exclusion from meaningful consideration. Although not formally agreed as an issue between the parties, these arguments flow from the pleaded allegations of breach of Regulations 18 and 19, and are properly before the Court for consideration. The supervisory nature of judicial review permits the Court to evaluate the legality, rationality, and procedural propriety of administrative decisions, even where those aspects are not framed as standalone grounds but are integrally connected to the core statutory breaches alleged. (iv) Whether the discretionary bars to relief apply, namely: o Delay — whether there was unreasonable delay in bringing the proceedings; o Non–Joinder — whether the failure to join the appointees as parties is fatal to the claim; and o Prejudice — whether granting relief would cause prejudice to third parties or otherwise undermine good administration such that relief ought to be withheld. Legal Framework Governing Judicial Review [ 18 ]. The present claim is brought pursuant to Part 56 of the Civil Procedure Rules 2023, which governs applications for judicial review and other administrative orders. The jurisdiction conferred upon the Court under Part 56 is supervisory in nature, and not appellate. It is well established that judicial review does not involve a reconsideration of the merits of the administrative decision, but rather an assessment of the legality, rationality, and procedural propriety of the decision-making process. As stated in Council of Civil Service Unions v Minister for the Civil Service1, the focus is on the lawfulness of the process, not the correctness of the outcome. [ 19 ]. The grounds upon which the Court may intervene in the exercise of its supervisory jurisdiction are settled and may be summarised as follows: (i) Illegality, where the decision-maker has acted outside the scope of its statutory powers, misdirected itself in law, or failed to properly apply governing legal principles; (ii) Irrationality or unreasonableness, where the decision is so unreasonable that no reasonable authority could ever have reached it; and (iii) Procedural impropriety, where the process by which the decision was made was unfair, contrary to natural justice, or in breach of a prescribed procedure. [ 20 ]. It is also a well-recognised principle that remedies in judicial review are discretionary. The Court may decline to grant relief even where a ground of review is established, particularly in cases where: – there has been undue or inordinate delay in bringing the claim; – there has been a failure to join persons who would be adversely affected by the relief sought; or – the grant of relief would cause prejudice to third parties or otherwise disrupt good administration. [1985] AC 374 [ 21 ]. These considerations are codified in CPR 56.4 and form part of the evaluative exercise undertaken by the Court in determining whether relief ought to be granted2. The Constitutional and Statutory Framework [ 22 ]. The Public Service Commission (“PSC”) is a constitutional body established under Chapter 2, Part II of the Constitution Order of Saint Vincent and the Grenadines 2009 Revised Edition. The PSC has the exclusive authority to appoint, promote, transfer, and discipline public officers, subject to the Constitution and the Public Service Regulations. [ 23 ]. The relevant provisions of the Public Service Regulations (2009 Revised Edition) for the purpose of this exercise are Regulations 18 and 19 which provide:

[73]The Court orders as follows: a) It is hereby declared that the appellant’s right to procedural fairness was infringed and that the Government’s decision to transfer the appellant is unlawful. Consequently, the appellant did not lawfully cease to hold the office of prison officer. b) The appeal is allowed and the decision of the learned judge below is hereby set aside. c) Each party shall bear their own costs of the appeal.

[74]Based on the order made at paragraph 73 a) above, it is only left for this Court to note that it is in the hands of the Attorney General, acting on the advice of Cabinet, to determine the appropriate steps to regularise the appellant’s position in light of this judgment. I concur. Vicki Ann Ellis Justice of Appeal I concur. Esco L. Henry Justice of Appeal By the Court Chief Registrar 28