Barbara Gayle, Staff Reporter
MEMBERS OF the Jamaica Civil Service Association are anxiously awaiting the outcome of an originating summons filed in the Supreme Court in April this year by Lackston Robinson, Senior Assistant Attorney-General, against members of the Public Service Commission (PSC) for alleged breaches of the Public Service Regulations.
The case which is bound to find its way in the Court of Appeal is one which will be used as a precedent when the judgment is handed down.
Legal arguments began last month before Justice Hazel Harris in chambers and continued on November 6 and 7.
The judge will have to interpret the Regulations, the authorities cited by the lawyers and also review the affidavits filed on behalf of Mr. Robinson and the PSC. The judge is being asked to determine if the Regulations were breached.
Some very startling disclosures have been made in an affidavit filed by Douglas Leys, Deputy Solicitor-General in the Supreme Court on June 10 this year. Mr. Leys has described the procedure taken in Mr. Robinson's case as "radical departure from the spirit and intent of the Constitution and the Public Service Regulations."
Michael Hylton, Q.C., Solicitor-General declined to comment last week when asked by The Sunday Gleaner if he had any response in relation to Mr. Leys' affidavit.
Mr. Robinson joined the Attorney-General's Department in March 1989, and acted for a year as Deputy Solicitor-General before he was reverted last year.
In the summons filed in the Supreme Court, Mr. Robinson has accused the five members of the PSC of acting unlawfully and in breach of the Public Service Regulations and the Constitu-tion. He is contending that before he was reverted, a determination should have been made as to his suitability for the post.
Mr. Robinson was sent on "forced" vacation leave on May 1 this year until further orders and he is challenging it in court.
The Solicitor-General has said in his affidavit that he took the decision in October last year to allow other senior lawyers in the department to act in the post so as to select the most suitable person for the post. Mr. Hylton said he also told Mr. Robinson that he was not satisfied with his performance.
The PSC, in an affidavit given by its chairman, Daisy Coke, has supported Mr. Hylton's decision.
However, Mr. Robinson is contending that when he met with the Solicitor-General on October 17 last year, there was no discussion as to his performance.
Mr. Leys said in his affidavit that when the matter involving Mr. Robinson came to his attention on October 17 last year, he suggested to the Solicitor-General to convene a meeting of all the senior officers in the department to discuss the issue. He said a meeting was held and he asked the Solicitor-General repeatedly whether there was a problem with Mr. Robinson's work or conduct. He said the Solicitor-General replied that Mr. Robinson was not perfect and that his work or conduct was not the issue. He said the Solicitor-General said then that the Regulations permitted him to recommend someone else to act and he would be recommending that Hugh Salmon act for a period of six months after which he would decide which of the two persons he would recommend to be appointed to the post.
Mr. Leys said he gave his views on the proposed course of action. "These were that the Solicitor-General could not proceed in this manner, as it was a breach of natural justice and in particular the legitimate expectations of the applicant. Firstly because he was altering the status of the applicant by interfering with his salary and other perquisites of office without giving him an opportunity to be heard. Secondly, that there was a clear vacancy for that post and the applicant had legitimate expectations that as the person acting in the post he would be afforded the opportunity of a hearing as it pertained to his work or conduct before he was reverted."
Mr. Leys said the Solicitor-General said he would look at the Regulations and give his view. He said Mr. Robinson told the Solicitor-General that he would like to see his position in writing as he intended to take legal advice on the matter.
Mr. Leys said the day following a meeting was held in which the Solicitor-General said he had reviewed the matter as promised and that he was of the view that the Regulations permitted him to act in the manner he had initially proposed. He also said that because Mr. Robinson had intimated that he would be taking legal advice he (Hylton) was giving him a memorandum concerning his dissatisfaction with his performance in the post.
"I have had the opportunity of reading this memorandum. I am personally surprised at, firstly the conclusion of the Solicitor-General as he does not afford the applicant an opportunity to defend himself but on his own perceptions he concludes that his performance was unsatisfactory. Secondly as the person who was put in charge of personnel in the office, the Solicitor-General never discussed any of these allegations with me.
"I was quite heartened to see in the Chief Personnel Officer's affidavit and the Chairman's affidavit that upon receipt of the Solicitor-General's recommendation they requested that a performance report be done on behalf of the applicant. I was quite heartened, because I am accustomed to the practice of performance reports being sent by this office to the Public Service Commission when officers are to be permanently appointed in vacant posts. Such a procedure in my view conforms with the intent of the Public Service Regulations as it gives to the officer who is being evaluated an opportunity to defend his work and conduct and to agree or disagree with the report. This practice would apply more forcefully when officers are to be reverted based on their performance," Mr. Leys disclosed.
"I am deeply disturbed that the Chief Personnel Officer could have acted on the memorandum without giving Mr. Robinson an opportunity to respond to what were very serious allegations against him and which would undoubtedly dim his career prospects in the Civil Service, if he were not given an opportunity to answer them," Mr. Leys said. Mr. Leys said further that there was no performance report in which Mr. Robinson was allowed to participate. He said he was informed by Mr. Robinson and verily believed that he was not aware that the memorandum was being sent to the PSC.
"This office has consistently advised the Public Service Commission on the rules pertaining to natural justice. This is based on the fact that the spirit and intent of the Constitution (and the Public Service Regulations which is derived from the Constitution) has as one of its main pillars, the bedrock of natural justice. I am deeply disturbed that the Solicitor-General could have acted in this manner; the very thing that I told him he could not do is the very thing he had done.
"This procedure adopted by the Solicitor-General and the Chief Personnel Officer and sanctioned by the PSC is my view a radical departure from the spirit and intent of the Constitution and the Public Service Regulations. Indeed, if allowed to go unchecked it has the potential to create a level of arbitrariness in relation to appointments to acting positions never before seen in the public service, " Mr. Leys added.
