Court knocks Public Services Commission, Correctional Department in prison warder pension case

The Court of Appeal has overturned a Public Services Commission (PSC) directive that a prison warder, who it was contended only did 20 years of work in his 37 years on the job at the Correctional Services Department, be paid only 50 per cent of his pension.

Instead, the Court ordered that the Government pay the warder, Erlin Hall, all outstanding pay and allowances as well as his full pension due since 2006.

Before his retirement, the PSC had directed that Hall be dismissed because of his prolonged absence from work, having taken sick leave for at least 323 days between 1986 and 1988 and tendered medical certificates for most of 1989 and 1990.

However, the Full Court quashed his dismissal on the basis that there had been a breach by the PSC of the rules of natural justice.

Court of Appeal Justice Dennis Morrison said that although Hall could in no way be regarded as faultless in the events that unfolded throughout the history of his employment, and perhaps might even have manipulated the system to his advantage, "it is clear that dilatory action or inaction and extreme laxity on the part of the department and/or the PSC either encouraged, facilitated, or contributed to it."

Who to blame?

He added that "if the finger of blame should be pointed at anyone ... it would have to be at the department and the PSC for failing to hold the appellant strictly to the terms of his contract of employment."

In the judgment delivered last month, Justice Morrison noted that Hall commenced his employment in the department in April 1969, aged 23.

On September 27, 1969, he lost the second toe of his right foot when a rifle with which he was armed accidentally discharged and the amputation of his toe led to him being incapacitated for 77 days.

Thereafter, he worked at various prisons up to 1985. He took 105 days vacation leave in 1982 and again in 1985, resumed duties on January 17, 1986, worked until March 31 that year, and from April 1 of the same year was granted 85 days sick leave, and later that year, five days sick leave.

Between March 3 and April 8, 1987 Hall was granted 32 days sick leave due to injuries to his left hand and waist said to have been sustained during a clash with a prisoner.

Hall applied for 30 days sick leave between June and July 1987 and was instead granted one day departmental leave and 29 days no-pay leave. Between July and September 1987, he was granted 58 days sick leave.

He was sent on interdiction and paid half his salary with effect from September 19, 1987, pending the outcome of disciplinary proceedings against him in relation to the escape of a prisoner.

In February and June 1988, Hall was granted permission to leave the island to keep medical appointments.

On September 1, 1988 Hall was informed that the disciplinary proceedings against him had been resolved in his favour, that he was to resume duties with effect from September 5 and that the half pay that had been withheld from him during his interdiction was to be paid.

However, Hall did not resume work. Instead, he applied for and was granted 113 days sick leave for four different periods from September to December 1988.

In January 1989, Hall's prolonged absence from work was brought to the attention of the PSC, which recommended that he be placed before a medical board so that his fitness for further service could be determined.

In February 1989, the department requested a comprehensive medical report from Hall as well as the doctor from whom most of the certificates had been received. However, there was no response from the doctor or a timely response from Hall.

On August 11, 1989, Hall was examined by the department's medical officer, Dr Cyril Gray, who found him to be physically fit and able to work. However, Hall submitted medical certificates for most of 1989 and into 1990.

In May 1990, the department referred the matter to the chief medical officer in the Ministry of Health, who informed the department that Hall was fit for work.

dismissed

Acting on advice from the chief personnel officer at the PSC, on September 28, 1990 the department summarily dismissed him.

Hall challenged his dismissal before the Full Court, which in July 1991 quashed the decision and ordered that the PSC have the wrong put right by dealing with the matter anew. The Full Court, however, said that nothing it did reinstated the warder to his position.

Attempts were made to put Hall before the medical board but there was at least an eight-year hiatus by both sides until July 2011 when he filed a claim in the Supreme Court seeking a declaration that he was entitled to be retired from the public service at age 60, that he was entitled to his salary, allowances and leave pay from October 1987 to 2006, and his retirement benefits from 2006.

In November 2011, the PSC retired Hall, effective May 11, 2008 and said that he was to be paid only 50 per cent of his pension on the 20 years that he actually worked.

The Supreme Court, in dismissing Hall's claim in July 2013, held that in all the circumstances there was no justification for rewarding him by paying him for that time he was away from work and that the decision to pay him 50 per cent on the 20 years he worked was eminently fair.

Hall appealed the matter.

Justice Morrison noted that the Full Court's quashing of Hall's dismissal and the explanatory words used by the judge in that matter constituted the clearest signpost to the PSC, the commissioner of corrections and the attorney-general as to the direction in which they were to have gone in seeking to effect a separation between themselves and Hall.

"However, this clear signpost was apparently ignored, and, amazingly, no steps whatsoever were taken to see whether they should have brought about the separation until in 1996," Justice Morrison said.

"At that time, rather than conducting a hearing with a view to dismissal, the PSC instead sought to take the route of the medical board," he added.

In an affidavit, Eileen Gardner, the then director of personnel in the Correctional Services Department, stated that Hall refused to attend the medical board.

In contrast, Hall stated that the medical board was made up of one doctor only and so was improperly constituted. The judge pointed out that any such board should be made up of at least two doctors.

"There can be no doubt that ... from the time of his employment in 1969 up to the time of his retirement, the appellant properly remained on the books as an employee of the department. As such, he must be entitled to the salary, allowances and benefits of an employee of the department," Justice Morrison said.

Procedural fairness apart, one arguable point that Hall could have advanced is that, even if the PSC was minded to divide the period of his service between the 20 years and the 17 years, he should be paid the full pension for the 20 years that he was on the job and not 50 per cent, Justice Morrison said.

"It seems to me as well that it was also open to him to have argued that there was nothing untoward about his conduct over the last 17 years at all, that he remained employed by the department with the department's full knowledge and acquiescence, and so he ought to be paid his full pension for the entire period of his employment," he added.

Justice Morrison said the Supreme Court judge clearly erred in finding that the reduction of Hall's pension was eminently fair. It is apparent that the decision to reduce his pension, inasmuch as it was taken without his input, is in breach of the rules of procedural fairness and natural justice and cannot be allowed to stand.

In allowing the appeal, Justice Morrison set aside the Supreme Court's judgment and ordered that Hall be paid all outstanding salaries, allowances and leave pay for the period October 1987 to October 2006, as well as his full retirement benefits from 2006.

mcpherse.thompson@gleanerjm.com