ST JOHN’S, Antigua -- In a majority decision delivered last Monday, the Eastern Caribbean Court of Appeal dismissed an appeal brought by former Antigua and Barbuda Commissioner of Police Gary Nelson in an effort to overturn a decision of the High Court, which had also ruled against him.
The Court of Appeal rejected arguments made on behalf of Nelson and found instead that the government and the Police Service Commission (PSC) had acted lawfully in the latter’s decision to terminate Nelson’s employment during his probationary period. It upheld the lower court’s earlier decision, effectively again confirming the PSC’s decision.
Nelson had sought review of and compensation for the PSC’s decision to dismiss him in circumstances where the government and the PSC had expressed dissatisfaction with his performance. His claim revolved around the effect of a two-year, fixed term contract that contained a clause stating that his employment was subject to completion of a successful probationary period of six months. The PSC, with the approval of the government, terminated his employment just before expiration of the probationary period and Nelson made an application for judicial review of that decision.
Arguing the case on behalf of the attorney-general and the minister of justice, both at first instance and on appeal, was attorney-at-law Karen de Freitas-Rait, while the PSC was represented by Sir Gerald Watt QC and Dr David Dorsett. Dane Hamilton QC appeared in both courts representing Nelson.
Though the decision of the Court of Appeal was a split decision with one of the three justices of appeal dissenting; in fact all three judges agreed on all but one issue under consideration. All three justices affirmed the lower court’s findings to include the following decisions:
• Nelson was bound by the terms of the draft contract, including the probation clause, even though he had never signed the contract, because he had accepted the contract by his conduct in travelling to Antigua and commencing work as commissioner of police;
• The probation clause was a valid part of his contract, because from the beginning it had been made abundantly clear to him by former minister of justice, Colin Derrick, that it would not be removed, and because he had commenced work fully aware of the probation requirement;
• Section 12(1) of the Police Act does not apply to a police officer employed under a fixed term contract and therefore did not apply to elson.
• The decision to terminate Nelson’s employment made by the PSC was in accordance with the requirements of the constitution and the PSC’s consultation with the prime minister on the matter was appropriate and lawful;
• There was absolutely no evidence that the PSC had acted unreasonable or irrationally in making the decision to terminate Nelson’s employment. In fact, “The reasons for the termination of his service which the Commission placed before the trial judge could in no way support a complaint of unreasonableness.”
• That Nelson was bound to rely only upon his legal rights under the terms of the fixed term contract and had no basis for making out a separate claim of legitimate expectation for continued employment beyond the probationary period.
Further by a majority decision the Court of Appeal also concluded that, in light of the agreed probationary period, the Commission had fulfilled all legal requirements of procedural fairness.
Significantly, the majority of the court held that a public officer on a fixed- term contract can be dismissed during his probationary period without having to first convene a formal hearing. In the majority decision on this issue, Justice of Appeal Michel noted that:
“The Commission was not …. required even to inform the appellant of the reason for their dissatisfaction with his performance”, but even if they were so required, “…the evidence in the case was that in fact they ‘did on divers occasions … communicate with the [appellant] relative to the performance of his duties and in so communicating indicated the Commission’s grave concern and displeasure.’” The majority of the court found that “ even the most liberal application of administrative law cannot insulate a person in the position of the appellant from termination of employment during the probationary stage of his employment and in accordance with a contract of employment entered into by him as a mentally composite adult professional clearly cognizant of the existence and effect of the probationary clause in the contract.”
In this regard the court also found that that Nelson’s record of performance was “clearly unsatisfactory” and that there was “uncontroverted evidence before the court …. That [Mr. Nelson] attended monthly meetings with the Commission and was told at those meetings that there was dissatisfaction with his work”.
Finally, it is noteworthy that the Court of Appeal also awarded costs in this matter. The High Court had earlier ordered Nelson to pay the government’s and the PSC’s costs at that level. Now the Court of Appeal has further required that Nelson pay the respondents’ Court of Appeal costs as well. The attorney-general viewed this as a significant victory and as indication of the strong position taken by the majority of the court, particularly since costs are often not awarded in judicial review cases.
The dismissal of Nelson’s appeal reinforces what the attorney general Justin Simon, the former minister of justice Colin Derrick and the Police Service Commission have maintained for some time: namely, that the decision to terminate Nelson’s employment as police commissioner was a lawful decision both substantively and procedurally, and that Nelson’s claims have been without merit. While a further appeal by Nelson to the Privy Council is, of course, always a possibility in such cases, the attorney-general remained hopeful that that the Court of Appeal decision will bring final closure to this matter.