Guerra v Attorney General

• Jurisdiction: Belize
• Judge: Legall, J.
• Judgment Date: 29 November 2010
• Court: Supreme Court (Belize)
• Docket Number: 371 of 2010
• Date: 29 November 2010

Supreme Court

Legall, J.

371 of 2010

Guerra

and

Attorney General

Appearances:

Mr. Dean R. Lindo SC for the claimant.

Mr. Andrew Bennett for the defendants.

Administrative law - Judicial review — Disciplinary proceedings — Termination of employment — Breach of natural justice — Declaration — Damages — Claimant immigration officer found in possession of US$ 11,500 at airport which was not declared — Claimant found not guilty of offence of unlawfully importing US currency but nevertheless terminated from employment — Whether claimant's dismissal by Public Service Commission in breach of natural justice — Whether Belize Advisory Council acted unlawfully by dismissing claimant's appeal without giving reasons for dismissal — Public Services Regulations, regulation 37 — Right to be heard before suspension— Failure by Commission and Council to give reasons for their decisions breached — Claimant's right to be heard — Damages for unlawful dismissal awarded.

Legall, J.

1 The claimant was employed by the government on 16th January, 2007 as Immigration Officer III. She was assigned to the Phillip Goldson International Airport to carry out her duties as an immigration officer. On 31st May, 2008, a search was made of a bag which was allegedly in the possession of the claimant at the airport, in which was found the sum of US$11,500.00 which was not declared. Detailed circumstances involving the finding of the money were not given in evidence. The claimant was criminally charged jointly with one Jose Aldana in the Magistrate's Court for the offence of unlawfully importing $11,500.00 US currency. Both the claimant and Jose Aldana were found not guilty on 1st April, 2009 of the charges. There is no evidence of the reasons for the not guilty verdict.

2 Prior to the hearing of the criminal charge against the claimant in the Magistrate's Court, the Public Services Commission by letter dated 18th July, 2008 to the claimant, suspended the claimant from active duty with effect from 21st July, 2008, for a period of sixty days pending the outcome of the investigation of the criminal charge against her. The letter of suspension stated that the claimant during the period of her suspension would receive, not her full salary, but fifty percent of it. Mr. Rodney Neal, Chairman of the Public Services Commission swore in an affidavit, that the suspension of the claimant was further extended on the 21st September, 2008, but neither the document making the further extension, nor the date to which the extension was made, was given in evidence.

3 By letter dated 24th July, 2009, the Public Services Commission informed the claimant that it was contemplating disciplinary action against her for misconduct in relation to the finding of the US currency in the bag allegedly in the possession of the claimant, under regulations 26, 27 and 40 of Services Commission Regulations 2001 No. 159 of 2001; and for violating the Code of Conduct specified in regulation 19 of the Public Services Regulations No. 160 of 2001. In so far as is relevant to these proceedings, regulations 26, and 40 are as follows:

• “26. A public officer who, without reasonable excuse does an act which:–

• (b) contravenes any of the provisions of these Regulations, the Public Service Regulations or any other

• Regulations for the time being governing the conduct of Public Officers; or

• (c) is prejudicial to the efficient conduct of the Public Service or tends to bring the Public Service into disrepute.

is liable to disciplinary proceedings for that misconduct in accordance with the provisions of these Regulations.

• 40. An officer who is acquitted of a criminal charge in any court is not precluded from having proceedings instituted against him under these Regulations in respect of an alleged act of misconduct arising out of that criminal charge.”

4 The letter also told the claimant of her rights as follows:

“In accordance with Regulation 29(1) of the Services Commissions Regulations ( S.I. 159 of 2001), the Commission hereby gives you an opportunity to exculpate yourself Please also be advised that under Regulation 29(1)(f) of the said Regulations, you may request that you appear before and be heard by the Commission with or without a Union Representative, an attorney-at-law or some other person to assist you at the hearing. The Commission is to be given advance notice of who will represent or assist you at the hearing.

Please also note that if any witnesses are called to give evidence at the hearing, you will have an opportunity through your Counsel, Union Representative or otherwise, to cross-examine such witnesses. If you wish to cross-examine any other witnesses, please indicate the names of such witnesses to enable the Commission to arrange for their attendance.”

5 The said letter also stated that several documents were attached, but these documents were not presented to the court, except a letter from the Director of Immigration and Nationality Services, Mrs. J. Saldivar Ramirez, to the CEO of the Ministry of National Security recommending that the claimant “be dismissed from the Public Service.” The claimant was also informed, on 29th August, 2009, according to the witness Rodney Neal, of the names of the witnesses who would appear on behalf of the Immigration Department at the disciplinary hearing before the Commission.

6 The disciplinary hearing was conducted by the Public Services Commission on the 3rd September and 5th October, 2009. At the hearing the claimant, as well her attorney-at-law, appeared and cross-examined witnesses. The Commission, at the conclusion of the hearing, sent a letter, dated 24th November, 2009 which states as follows:

“The Public Services Commission after careful consideration of the evidence presented at the hearings, found that you contravened:

• (1) Public Service Regulation 19(a), (b), (d) (e) and (f) which states:–

In accordance with section 121 of the Constitution, all public officers shall conduct themselves in such a way as not to:–

• (a) place themselves in positions in which they have or could have a conflict of interest;

• (b) comprise the fair exercise of their official functions and duties;

• (d) demean their office or position;

• (e) allow their integrity to be called into question; nor

• (f) endanger or diminish respect for, or confidence in, the integrity of the Government.

• (2) Services Commissions Regulations 26(b) and

• (c) which states:–

A Public Officer who, without reasonable excuse, does an act which:–

• (b) contravenes any of the provisions of these Regulations, the Public Service Regulations or any other Regulations for the time being governing the conduct of Public Officers; or

• (c) is prejudicial to the efficient conduct of the Public Service or tends to brings the Public Service into disrepute, is liable to disciplinary proceedings for that misconduct in accordance with the provisions of these Regulations.

As a consequence, the Public Services Commission approved that:–

• (1) you be dismissed from the Public Service with effect from November 25, 2009.

• (2) the fifty percent (50%) salary withheld during the period of suspension i.e. July 21 2008 to November 23, 2009, be forfeited;

• (3) that you be paid in lieu of all vacation leave accrued as at July 20, 2008, in accordance with Public Service Regulations 55 and 58.”

7 No specific reasons were not given to the claimant by the Commission for finding that the claimant contravened the above mentioned Regulations, nor was the claimant informed by the Commission of her right to appeal the decision of the Commission to the Belize Advisory Council, and the time required for making such an appeal. Regulations 33 and 34 require that the record of the proceedings contain reasons for the findings, and that the claimant be informed of the right to appeal. Regulation 33 and 34 are as follows:

• “33. In any disciplinary proceedings, a record of proceedings shall be made which shall contain statements of evidence, the findings of the Services Commission, together with reasons for the finding and the penalty imposed.

• 34. The Services Commission shall, as soon as possible, inform the officer in writing of its findings, the penalty imposed on him, of his right to appeal the determination of the Services Commission to the Belize Advisory Council and of the time required for making such application.

8 Though the claimant was not informed of her right to appeal as required by the above Regulations, and was not given specific reasons for the findings by the Commission that she contravened the Regulations, the claimant nevertheless appealed the decision of the Commission to the Belize Advisory Council (the Council) on 9th December, 2009. The Council met and heard the appeal on 23rd April, 2010 and upheld the decision of the Commission. The Council refused to grant the claimant an oral hearing at the appeal, purportedly acting under Rule 8(1)(2) of the Belize Advisory Council Procedure Rules, 1997, which states as follows:

“8.(1) The Council shall consider and determine every appeal on the basis of written submissions made by both parties but may call for additional information or evidence if it deems necessary.

(2) It shall not be incumbent on the Council to grant the appellant or the other party an oral hearing.”

The Council did not give the claimant reasons for upholding the decision of the Commission and for dismissing her Appeal.

9 On 18th May, 2010 the claimant made an application to the Supreme Court for permission to apply for Judicial Review to quash the decisions of the Commission and the Council. The court, by a consent order dated 18th June, 2010, granted the permission to the claimant, who, on 5th July, 2010, filed a Fixed Date Claim form for orders of Certiorari to quash the decisions of the Commission and Council. In addition, the claimant claims the following:

“An order that...