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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2013-0552
BETWEEN
MARSHA KALLAS
FLAVIAN LATCHOO
CLAIMANTS
AND
THE CHIEF FIRE OFFICER OF TRINIDAD AND TOBAGO
DEFENDANT
BEFORE THE HON. MADAME JUSTICE JOAN CHARLES
Appearances:
For the Claimants: Mr. Michael A.A. Quamina
Instructed by Ms. Gitanjali Gopeesingh
For the Defendant: Mr. Russell Martineau S.C., Mr. Gerald Ramdeen,
Ms. Narelle Ferreira
Instructed by Ms. Kendra Mark
Date of Delivery: 19th December 2014
JUDGMENT
2
BACKGROUND
[1] The Claimants claimed for the Judicial Review of the decision of the Chief Fire
Officer Acting (hereinafter referred to as the Chief Fire Officer) received by the
Claimants on March 15th 2013 suspending the Claimants’ participation in the
Recruit Firefighter Training Program. They sought the following reliefs:
a) A Declaration that the Chief Fire Officer’s decision contained in the
notification dated March 15th 2013 is unlawful, null and void and of no
effect in that in arriving at it the Chief Fire Officer failed to take into
account relevant matters and/or unfairly disregarded relevant facts and
arrived at a decision which was based on a material misunderstanding of
the facts and/or a disregard of relevant matters and there was no
opportunity of a hearing and the decision was therefore irrational and/or
illegal and in breach of the Rules of Natural Justice,
b) A Declaration that the Claimants had a Legitimate Expectation that they
would be permitted to complete the training, despite their medical
condition, and if successful be absorbed into the Fire Service,
c) An Order of Certiorari to bring the decision to suspend the officers before
the Court and to quash the Chief Fire Officer’s decision,
d) Damages,
e) Costs,
f) All other necessary and consequential directions be given.
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THE AFFIDAVITS
[2] The Claimants filed affidavits in support of their application on 2nd January 2014.
In reply the Defendant relied on the affidavits of Earl Sampson, Acting Fire
Station Officer, Kenneth Stephen, Acting Divisional Fire Officer and Nayar
Rampersad, Chief Fire Officer which were filed on 7th March 2014. The Claimants
filed affidavits on 21st March 2014 in response.
FACTS
[3] Both Claimants were auxiliary firefighters of long standing each with
approximately 15 years of service. Both were injured during the course of their
employment in the years 2006 and 2008 respectively and were thereafter placed
on administrative desk duties with no physical activities.
[4] On August 14th 2009, Fire Service Order No. 18 of 2009 was published and it
advised that Auxiliary Officers were to continue on a month to month contract
for a period of two (2) years with effect from September 28th 2009 in order to
qualify academically for absorption into the Trinidad and Tobago Fire Services.
[5] The names of both Claimants appeared on the list of names attached to the
aforementioned Order and they both were within the time period provided to
qualify academically for absorption.
[6] Both Claimants were admitted into the Fire Service Training School to commence
induction training. On presenting themselves, both Claimants produced the
necessary medical documentation to support their conditions which were well
known to the Fire Service, the injuries having occurred during the course of
employment and the Claimants having thereafter been restricted to desk duties.
4
[7] Both Claimants were told that they were to complete the induction training but
in so doing they were not to engage in any of the physical activities. In this
regard, Flavian Latchoo1 deposed:
“8. I was advised by my Doctors that I should not, and by the
Fire Service Instructors that I was not required to,
participate in any of the physical drills but I was expected
to take part in all other aspects of the requisite-training for
the entire training period.
9. As instructed, I reported for and participated in all of the
training exercises except for the physical training from
which I was exempted by Acting Divisional Fire Officer
Stevens.
10. I participated in all examinations as required and I was
successful in passing each exam.”
[8] The evidence of Marsha Kallas2 with respect to the arrangement was as follows:
7. On October 25th, 2012, I reported to the Couva South Fire
Station. I took the M.R.I report which I showed to the
Acting Fire Station Officers Sampson and Hospedales. I
was sent for a further medical.
8. A week prior the start of the training, I reported to the
Acting Divisional Fire officer in charge of Training
Stevens. Officer Stevens was in charge of the training and
1 Affidavit of Flavian Latchoo filed on 2 January 2014 2 Affidavit of Marsha Kallas filed on 2 January 2014
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verbally informed me that as a result of my medical report
Chief Fire Officer Williams and the Human Resource
Manager Mr. Edwards agreed that I was exempt from the
physical training. As a result of this, I reported for and
participated in all the training exercises except for the
physical training, which while I reported for it I did not
participate.
9. Some days later, I was informed by Fire Station Officer
Sampson that I was required to stay in dorms during the
training session. This was a usual requirement for trainees.
I was further informed that the training would commence
on November 15th, 2012.
10. I participated in all training exercises except for physical
trainings as well as wrote all examinations as required and
I was successful in passing each exam.
[9] The evidence of Acting Fire Station Earl Sampson3 with respect to the
arrangement was as follows:
“4. Sometime later, Acting Divisional Officer Stephen
informed me that there were special arrangements in place
in relation to Auxiliary Firefighters Marsha Kallas, Flavion
Latchoo and Tetla Thorne, in that, they were required to
train with the other trainees however they would be
absolved from physical activity. Officer Stephen also
informed me that the said trainees would be allowed to leave
the Training School after the classroom sessions and return 3 Affidavit of Earl Sampson filed on 7 March 2014
6
to work at their respective Fire Stations.
5. Training commenced on 15th November 2012, Auxiliary
Firefighters Kallas, Latchoo and Thorne reported for
training and the aforesaid arrangement was carried out.
About 3 or 4 days into the said training Officer Stephen
informed me that he had received new instructions from the
Chief Fire Officer that Auxiliary Firefighters Kallas,
Latchoo and Thorne would be no longer allowed to leave the
Fire School after the classroom sessions and that they were
required to stay at the School and be present for all
activities. I then informed the said trainees that they would
no longer be allowed to leave the Training School after
classroom sessions and that they were required to sleep in
and be present for all activities. They however, did not
participate in any physical activity sessions. While the
physical activity sessions were being conducted Kallas,
Latchoo and Thorne were either in the classrooms or
observing from a distance on the field.”
[10] The evidence of Kenneth Stephen4, Acting Divisional Fire Officer with respect to
the arrangement was as follows:
“4. Sometime in early November I then met with Auxiliary
Firefighters Marsha Kallas, Flavian Latchoo and Tetla
Thorne in my office at the Fire Service School. I provided
them with a copy of the syllabus with the classroom sessions
and I informed them that I had discussions with the Chief
4 Affidavit of Kenneth Stephen filed on 7 March 2014
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Fire Officer and it was agreed that they were required to
train with the other trainees and that they would be
absolved from physical activity. Further, that they would
be allowed to leave the Fire Service School and were
required to return to work immediately at their respective
Fire Stations. Also, that it was decided that they should
accept the last three fire service numbers which would make
them junior to those officers who had completed the full
training.
6. Training commenced on 15th November 2012. Auxiliary
Firefighters Kallas, Latchoo and Thorne reported for
training and the aforesaid arrangement was carried out.
About a week and a half after training had started I received
a call from Mr. Williams and he requested that I report to
his office and I complied. I met with Mr. Williams and he
informed me that he had received information that one of
the three Auxiliary Firefighters, that is, Kallas, Latchoo and
Thorne, were speaking openly about their arrangement and
as such, there was going to be a change in the arrangement
regarding Auxiliary Firefighters Kallas, Latchoo and
Thorne. Mr. Williams then informed me that the aforesaid
officers were required to report to the Fire Service School
and remain there with the rest of the trainees. They were
not allowed to leave the School and they were required to
sleep in. As such, I informed Officer Sampson of these new
instructions.”
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CLAIMANTS’ SUBMISSIONS
[11] The Claimants relied upon the authority of Paponette v The Attorney General
of Trinidad and Tobago5 in support of their case that they were the beneficiaries
of a substantive Legitimate Expectation and that the Defendant breached that
Legitimate Expectation by resiling from the promise given them by former Chief
Fire Officer Williams.
[13] The Claimants argued that the evidence in their case clearly shows that a
promise was held out to them and it was clear, unambiguous and devoid of
relevant qualification6. They submitted that the terms of the promise were
outlined in the affidavit of Kenneth Stephen7, Acting Divisional Fire Officer who
deposed that the Claimants were required to train with the other trainees but
that they would be absolved from physical activity; further, that upon
completion of the training they would be given the last three fire service
numbers which would make them junior to those officers who had completed
the full training. Officer Stephen also swore that this decision was made by the
Chief Fire Officer after they had held discussions on the issue of the Claimants’
medical condition and their inability to participate in the physical training as a
result of their said medical status.
[14] The Claimants went on to submit that this promise amounted to a Legitimate
Expectation that they would be exempt from the physical aspects of training at
the Fire Service Training School; that upon a successful completion of the other
classes and non physical training they would be given the last three numbers of
their batch and absorbed into the Fire Service.
5 (2010) UKPC 32 6 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 7 Affidavit of Kenneth Stephen filed on 7th March 2014 para 4
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[15] It was contended by the Claimants that the Defendant has agreed that a promise
was made to them in the terms set out above. Their answer to the claim is that
the promise as given to the Claimants is not in the public interest. Chief Fire
Officer Rampersad deposed at paragraph 9 of his affidavit:
“The arrangement which absolved them from physical
activity and later allowed them to leave the Fire Service
School and return to work, with the last three fire service
numbers, though promised to them, was not in the public
interest or in the interest of the Fire Service.”
[16] They argued that the Defendant has provided no evidence upon which the Court
can decide how to strike the balance of fairness between the interest of the
Claimants and the overriding public interest relied upon by the Defendant. The
Claimants contended that the Defendant has failed to put material before the
Court to justify its breach of the promise which amounts to a Legitimate
Expectation. Further, the Defendant has not condescended to provide the Court
with information as to what is the nature of the duties of Fire Officers – whether
it encompasses physical characteristics, and if so, does it only encompass
physical characteristics. They submitted that no assistance has been provided
this Court in order to determine whether the Claimants could contribute as fire
officers without engaging in physical activity.
[17] The Claimants asserted that there has been no change in circumstance since the
promise was given in that the Claimants’ medical condition was known and was
taken into consideration before the promise was made. It was determined by the
Chief Fire Officer that they could still perform the duties of a Fire Officer, and
were therefore allowed to undergo the induction training. The sole concern at
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that stage of the promise was that it may have been unfair for the Claimants to
not participate in the physical activities and still be higher in rank than their
colleagues based on the number they might have been assigned. This concern
was addressed by them being put in receipt of the last three numbers of the
batch. The Claimants stated further that no evidence has been put before the
Court to suggest a change in these facts to any extent which could result in there
now being a public interest in them not being allowed to complete the induction
training. It was submitted that the only different circumstance was that the new
Chief Fire Officer held a different view on the matter from that of the Chief Fire
Officer who made the promise.
[18] The Claimants submitted that the Court ought to have regard to the fact that the
Chief Fire Officer never once made reference to the promise made to the
Claimants. In neither his correspondence nor his affidavit did he ever mention
taking into consideration the fact that a promise had been made before arriving
at the decision to suspend. As a result they argued that he failed to take into
consideration that the status of the Claimants was previously considered and it
was determined after proper consideration that they would be allowed to
complete the induction training without participating in the physical training but
that they would take the last numbers. They also pointed out that he failed to
take into consideration that the Claimants had already commenced training and
were well into the programme by the time he decided to suspend them.
[19] The Claimants indicated that the submissions above set out apply mutatis
mutandis to the argument as to whether the Chief Fire Officer failed to take into
account relevant matters and/or unfairly disregarded relevant facts and arrived
at a decision which was based on a material misunderstanding of the facts
and/or a disregard of relevant matters making the decision to suspend the
Claimants irrational and/or illegal and in breach of the rules of natural justice.
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[20] The Claimants therefore submitted that the decision to suspend the officers
should be quashed and that they ought to be permitted to complete the training
in accordance with the promise and be absorbed into the Service.
[21] They urged that the damages awarded should be a sum equivalent to salary lost
as a trainee and then a firefighter (on the premise that they would have
graduated with their batch and been firefighter) from the date of the suspension
to the date of judgment.
DEFENDANT’S SUBMISSIONS [22] The Defendant’s main contention is that it is lawful for a public authority to
resile from a promise if it would be unlawful for the public authority to give
effect to the Legitimate Expectation. He submitted that the promise relied upon
to give rise to Legitimate Expectation must be lawful.
[23] It was submitted on behalf of the Defendant that the promise to exempt the
Claimants from physical activity in their training or to permit the Claimants to
complete the training, despite their medical condition and if successful be
absorbed into the Fire Service as stated in the Fixed Date Claim Form is not a
lawful promise. They contended that firstly, to be eligible as a candidate for
appointment to the office of firefighter he/she must successfully complete the
course of training as provided for in Regulation 3(1)(a) of the Fire Service
(Terms and Conditions of Employment) Regulations which has the statutory
force of law; the Chief Fire Officer cannot waive it. Section 3 of the Fire Service
(Terms and Conditions of Employment) Regulations, require the Claimants to
successfully complete their apprenticeship training on terms and conditions
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approved by the Chief Fire Officer. The terms and conditions approved by the
Chief Fire Officer require trainee firefighters to fulfill physical and medical
examinations in order for them to successfully perform the duties as outlined in
Section 35 of the Fire Service Act.
[24] The Defendant they submitted that the qualification of being medically fit which
was required under Regulation 3(1)(b)(iv)(c) also had the force of law and could
not be waived. Latchoo did not do the medical and Kallas failed it.
[25] It was argued on the Defendant’s behalf that Paponette’s case was
distinguishable on the ground that any expectation which the Claimants
harboured on the basis of the promise made them by Chief Fire Officer Williams
could not therefore be a Legitimate Expectation.
[26] The Defendant went on to submit that an Expectation whose fulfillment requires
that a decision-maker should make an unlawful decision, cannot be a Legitimate
Expectation. Any expectation must yield to the terms of the legislation under
which the decision-maker is required to act. The Defendant cited several cases in
support of his submission that the promise given the Claimants by the former
Chief Fire Officer cannot amount to a Legitimate Expectation by reason of the
fact that the promise was unlawful in that it was in breach of Chief Fire Officer
Williams’ duty with which he was obligated to comply. It was pointed out that a
Statutory Duty cannot be overridden by a Legitimate Expectation. It was also
submitted that it was only the lawful promise of a public authority or decision-
maker which can give rise to a Legitimate Expectation the breach of which would
entitle the Claimants to a remedy in Public Law. For the Chief Fire Officer to
absolve or exempt the Claimants from the requirements of Regulation 3(1)(a) by
exempting them from the physical training component and/or the fitness for
service medical requirement would put him in conflict with his duty to obey
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Regulation 3(1). An expectation cannot override that duty8.
[27] The Defendant also submitted that in any event Mr. Latchoo could only have had
a Legitimate Expectation if he had subjected himself to the medical examination
which he has not done9 and if he cooperated in the training programme which he
did not do10. Further, that Ms. Kallas could not make a claim for Legitimate
Expectation given the fact that she was medically unfit.
[28] It was further submitted that in this case there is sufficient public interest to
justify the frustration of the promise. Mr. Latchoo began training on November
7, 201211 but it was not until November 21, 2012 that the doctor granted him 90
days exemption from the physical activity12.
[29] There is evidence that the Defendant took into consideration the fact that the
Claimants were granted an exemption and determined that notwithstanding the
said exemption that the public interest required the suspension. Paragraph 8 of
the Chief Fire Officer’s affidavit and the report attached thereto as ‘N.R.3.’ are
relied upon in support of the Chief Fire Officer’s contention that he took into
account the promise made to the Claimants before deciding to resile from it. The
Defendant urged the Court to note that the Claimants had not identified this as
an issue earlier, thereby depriving the Chief Fire Officer of an opportunity to
address the issue in evidence.
[30] The Defendant submitted that the decision to suspend the Claimants from
training pending investigations and until they could provide suitable medical
certificates is proportionate. Not only is suspension pending investigation a well
8 AG of Hong Kong v Ng Yuan Shiu [1983] 2 All ER 346 at 351 i 9 ‘N.R.4’ 10 ‘N.R.3’ 11 Affidavit of Flavian Latchoo filed on 2nd January 2014 para. 7 12 Affidavit of Nayar Rampersad & "NR2"
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recognised and accepted course of action13 but given the risks to which fire
officers are exposed the requirement that they be medically examined and
submit suitable medical certificates are proportionate14.
[31] In answer to the Claimants’ contention that the Defendant failed to take into
account relevant matters and did not provide them with an opportunity to be
heard, the latter stated that, to the contrary, the Claimants were invited by the
Chief Fire Officer to make representation on the issue of whether their training as
a fire fighter should be terminated before a final decision was made15. The
Claimants were in fact told of the factors that were weighing against their
interests as outlined in this letter. Further, the CFO informed them of his duty to
ensure that the recruits undergo a “sufficiently rigorous regime of physical
training” in order for them to perform their duties well if selected to be
Firefighters.
[32] The Defendant was of the view that the Claimants’ submission that they should
be permitted to be absorbed into the Service should not be entertained since
there is no basis on which they should be permitted to be absorbed into the
Service. Completion of training only make them eligible candidates for
appointment and that, if they satisfy the other qualifications. Successful training
is only one such qualification. That is a matter for the Public Service
Commission.
[33] The Defendant contended that the Claimants, if successful, could only claim the
loss of a chance to be firemen and no damages can be awarded for that.16
Additionally, they submitted that in any event the chance is too remote; not only
13 Lewis v Heffer [1978] 3 All ER 354 14 George v Chief Fire Officer TT 2008 HC 233 per Jamadar J 15 ‘M.K.5’ and ‘F.L.3.’ 16 Harridath Maharaj v Public Service Commission CV 2007-01093 at para.56 to 58
15
will they have to show that the suspension will not be lifted but that the Public
Service Commission would have appointed them firemen.
CLAIMANTS’ SUBMISSIONS IN REPLY [34] The Claimants submitted in reply that Regulation 3 provides that the relevant
course is to be approved or recognised by the Chief Fire Officer; any other
qualification is to be assessed and determined to be suitable by the Chief Fire
Officer. In essence, the Chief Fire Officer is the office holder vested with the sole
responsibility to determine eligibility, outside of good character, age, physique,
and academic qualification.
[35] They contended that it was in furtherance of this power, that the Chief Fire
Officer in this instance determined that even if these officers did not participate
in the physical aspects of training at the Fire Service Training School, they would
still be eligible to become fire officers.
LAW
[36] In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
(No 2) Lord Hoffman outlined the basis upon which a Claim for a Legitimate
Expectation of a substantial benefit can be made as follows:
“It is clear that in a case such as the present, a claim to a
legitimate expectation can be based only upon a promise
which is ‘clear, unambiguous and devoid of relevant
qualification’: see Bingham LJ in R v Inland Revenue Comrs,
Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545,
16
1569. It is not essential that the applicant should have relied
upon the promise to his detriment, although this is a relevant
consideration in deciding whether the adoption of a policy in
conflict with the promise would be an abuse of power and
such a change of policy may be justified in the public interest,
particularly in the area of what Laws LJ called ‘the macro-
political field’: see R v Secretary of State for Education and
Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.”
[37] In Paponette v The Attorney General17 Lord Hoffman explained the onus of
proof when a Claim for Breach of a Legitimate Expectation is made and the
Defence raised is that of justification of the Breach of Legitimate Expectation in
the public interest. He expressed is thus:
“The initial burden lies on an applicant to prove the
legitimacy of his expectation. This means that in a claim
based on a promise, the applicant must prove the promise
and that it was clear and unambiguous and devoid of
relevant qualification. If he wishes to reinforce his case by
saying that he relied on the promise to his detriment, then
obviously he must prove that too. Once these elements have
been proved by the applicant, however, the onus shifts to the
authority to justify the frustration of the legitimate
expectation. It is for the authority to identify any
overriding interest on which it relies to justify the
frustration of the expectation. It will then be a matter for
the court to weigh the requirements of fairness against that
17 (2010) UKPC 32
17
interest.
If the authority does not place material before the court to
justify its frustration of the expectation, it runs the risk that
the court will conclude that there is no sufficient public
interest and that in consequence its conduct is so unfair as
to amount to an abuse of power. The Board agrees with the
observation of Laws LJ in Nadarajah Secretary of State for
the Home Department [2005] EWCA Civ 1363 at para 68:
“The principle that good administration requires public
authorities to be held to their promises would be
undermined if the law did not insist that any failure or
refusal to comply is objectively justified as a proportionate
measure in the circumstances.” It is for the authority to
prove that its failure or refusal to honour its promises was
justified in the public interest. There is no burden on the
applicant to prove that the failure or refusal was not
justified.”
The Board rejects the proposition that the court can (still
less, should) infer from the bare fact that a public body has
acted in breach of a legitimate expectation that it must have
done so to further some overriding public interest. So
expressed, this proposition would destroy the doctrine of
substantive legitimate expectation altogether, since it would
always be an answer to a claim that an act was in breach of
a legitimate expectation that the act must have been in
furtherance of an overriding public interest.
18
It follows that, unless an authority provides evidence to
explain why it has acted in breach of a representation or
promise made to an applicant, it is unlikely to be able to
establish any overriding public interest to defeat the
applicant’s legitimate expectation. Without evidence, the
court is unlikely to be willing to draw an inference in
favour of the authority. This is no mere technical point. The
breach of a representation or promise on which an applicant
has relied often, though not necessarily, to his detriment is
a serious matter. Fairness, as well as the principle of good
administration, demands that it needs to be justified. Often,
it is only the authority that knows why it has gone back on
its promise. At the very least, the authority will always be
better placed than the applicant to give the reasons for its
change of position. If it wishes to justify its act by reference
to some overriding public interest, it must provide the
material on which it relies. In particular, it must give
details of the public interest so that the court can decide
how to strike the balance of fairness between the interest of
the applicant and the overriding interest relied on by the
authority. As Schiemann LJ put it in R (Bibi) v Newham
London Borough Council [2001] EWCA Civ 607, [2002] 1
WLR 237, at para 59, where an authority decides not to
give effect to a legitimate expectation, it must “articulate its
reasons so that their propriety may be tested by the court”.
[38] The case of R v Inland Revenue Commissioners, ex parte MFK Underwriting
Agents Ltd18 makes it clear that the courts should only give effect to a Legitimate
18 [1990] 1 All ER 91
19
Expectation.
“The correct approach to 'legitimate expectation' in any
particular field of public law depends on the relevant
legislation. In R v A-G, ex p Imperial Chemical Industries
plc (1986) 60 TC 1 the legitimate expectation of the
taxpayer was held to be payment of the taxes actually due.
No legitimate expectation could arise from an ultra vires
relaxation of the relevant statute by the body responsible for
enforcing it. There is in addition the clearest possible
authority that the Revenue may not 'dispense' with
relevant statutory provisions (see Vestey v IRC (Nos 1 and
2) [1979] 3 All ER 976, [1980] AC 1148)."
[39] In Nadarajh v Secretary of State19 Laws LJ opined:
“The problem with substantive legitimate expectation was
thought to be that it looked like a form of estoppel, which
would or might inhibit a public body from exercising its
statutory discretionary power in the public interest as it
perceived it. Lord Birkenhead had stated the law in Birkdale
District Electric Supply Co. Ltd [1926] AC 355, 364 (cited
by Lord Denning MR in Ex p. Liverpool Taxi Fleet
Operators' Association [1972] 2 QB 299: the citation was
repeated in Ng Yuen Shiu at 638B). It was"a well-
established principle of law, that if a person or public body
is entrusted by the legislature with certain powers and
duties expressly or impliedly for public purposes, those
19 2005 EWCA 1363 para 49
20
persons or bodies cannot divest themselves of these powers
and duties. They cannot enter into any contract or take any
action incompatible with the due exercise of their powers or
the discharge of their duties."
[40] In Paponette v The Attorney General P.C20 the Privy Council opined:
"The leading case is R v North and East Devon Health
Authority, Ex p Coughlan [2001] QB 213. Lord Woolf MR,
giving the judgment of the Court of Appeal said, at para 57:
“Where the court considers that a lawful promise or
practice has induced a legitimate expectation of a benefit
which is substantive, not simply procedural, authority now
establishes that here too the court will in a proper case
decide whether to frustrate the expectation is so unfair that
to take a new and different course will amount to an abuse
of power. Here, once the legitimacy of the expectation is
established, the court will have the task of weighing the
requirements of fairness against any overriding interest
relied upon for the change of policy. ”
ISSUES
(a) Did the promise made to the Claimants that they could complete Fire Service
Training without engaging in any of the physical activities amount to a
Legitimate Expectation of a substantial benefit that once they had completed
20
App. No. 9 of 2010 at paragraph 34
21
and passed the other element of the training that they would be absorbed into
the Fire Service?
(b) Was it fair in all the circumstances for the Chief Fire Officer to resile from the
promise made?
ISSUE (a) Analysis
Did the promise made to the Claimants that they could complete Fire Service Training
without engaging in any of the physical activities amount to a Legitimate Expectation
of a substantial benefit that once they had completed and passed the other element of
the training that they would be absorbed into the Fire Service?
[41] The first issue that I must determine is whether a promise had been made to the
Claimants by the Defendant that was clear, unambiguous and devoid of relevant
qualification upon which they relied. The full scope of what was promised the
Claimants is contained in the affidavit of Kenneth Stephen filed on behalf of the
Defendant. By paragraph 8 thereof he deposed that the list of auxiliary fire
fighters included both Claimants. He was aware that they both had medical
conditions which would have affected their ability to take part in the physical
aspect of the training required to become a fire officer. He brought this concern
to the attention of the then Chief Fire Officer Mr. Carl Williams. After
discussions between himself and Mr. Williams, it was decided that the Claimants
would be allowed to train with the other trainees but that they would be
absolved from all physical activity. The Chief Fire Officer also decided that the
Claimants would be required to attend all of the classroom sessions but would be
22
allowed to leave the Fire Service Training School and immediately return to
work at their respective fire stations. It was also decided that these officers
would be given the last three Fire Service numbers which would make them
junior to the officers who had completed full training. The Claimants have set
out in their affidavits that these were the decisions made by the Chief Fire Officer
which were communicated to them and upon which they relied. They have
testified that they understood these decisions to mean that having qualified
academically to participate in the further training to become a fire officer they
would be exempt from the physical aspect of that training because of their prior
medical condition which was well known to the Defendant. Further, that they
would be given the last three Fire Service numbers of their badge by reason of
the fact that they had not participated in the physical training as did their
counterparts. In the circumstances I hold that there was a clear, unambiguous
promise made to the Claimants in the terms as set out above.
[42] The next issue to be decided is whether this promise amounts to a Legitimate
Expectation of a substantial benefit. As was held in the case of Paponette v The
Attorney General supra “The initial burden lies on an applicant to prove the
legitimacy of his expectation.” The Defendant has asserted that this promise given
to the Claimants could not be legitimate since it was unlawful in that it was in
breach of Regulation 3(1)(a) of the Fire Service (Terms and Conditions of
Employment) Regulations. They went on to argue that the requirement that a
trainee firefighter be medically fit was a statutory requirement21 and could not be
waived by the Chief Fire Officer. On the facts of this case Claimant Latchoo did
not do the medical and Kallas failed it. I agree with the authorities cited by the
Defendant which hold that a Legitimate Expectation must yield to statutory
duties and that a decision-maker has a duty to comply with statutory obligations
imposed upon him in the exercise of his decision-making authority. Very
21 Regulation (3)(1)(b) (iv) (c)
23
importantly I also agree that an expectation whose fulfillment requires that a
decision-maker make an unlawful decision cannot be a Legitimate Expectation.
It follows that if Regulation (3)(1)(a) and (3)(1)(b) (iv)(c) provide that a trainee
firefighter must be medically fit as a precondition to becoming a fire officer, then
the Applicants’ claim that they were the beneficiaries of a Legitimate Expectation
that they would be allowed to complete training without undergoing the
physical exercises and the appointed firefighters upon successful completion of
the remaining classes at the Fire Service Training School must fail.
The Regulations
3. (1) A person who –
(a) successfully completed a course approves by the
Chief Fire Officer and conducted by the Fire Service
School or completed a course recognised by the
Chief Fire Officer as the equivalent of the course
conducted by the Fire Service School; and
(b) at the time of application –
i. is of good character as evidenced by a testimonial
from the Police and a member of standing in the
community;
ii. is not younger than eighteen years nor older than
thirty-five years;
iii. is of good physique of at least 166.25 centimetres in
height in the case of males and 160 centimetres in
height in the case of females;
iv. possesses –
a. Caribbean Examination Council passes in General
Proficiency, Grade I, II or III Basic Grade I in
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English Language and General Proficiency Grade I,
II or II or Basic Grade I or II in two other subjects.
b. General Certificate of Education at “ordinary level”
with passes in three subjects one of which is English
Language at Grade A, B; or
c. such other qualification assessed to be suitable by
the Chief Fire Officer after consultation with the
Permanent Secretary and the Chief Personnel
Officer,
is eligible as a candidate for appointment to the office of Firefighter.
(2) A person who successfully completes his apprenticeship
training on terms and conditions as approved by the Chief Fire
Officer and satisfied the requirements specified in subregulation
(1)(b)(i), (ii) and (iii) is eligible as a candidate for appointment to
the office of Firefighter.
[43] These Regulations provide the eligibility criteria for appointment to the office of
a firefighter by a candidate. Regulation (3)(1)(a) gives to the Chief Fire Officer
the authority to approve a course as conducted by the Fire Service Training
School as a criterion for qualification. Subregulation (b) provides the other
requirements with which a candidate for appointment as a fire officer must
comply. As listed above the only physical requirement is that of a minimum
height for males and females. Regulation (3)(1)(b)(iv)(c) is relied upon by the
Defendant in support of their submission that the Claimants had to be medically
fit in order to be considered for appointment to the office of firefighter. He also
relies upon Fire Service Order #18 of 2009. It is in this Order that a requirement
for fitness for service as determined by a medical examination is outlined as one
of three conditions that must be fulfilled for the absorption of auxiliary
firefighters into the service. The other conditions listed therein include successful
25
completion of a three month induction training program at the Fire Service
Training School and the passing of final written and practical examinations as
well as successful completion of a twelve month probationary period.
[44] It would seem to me that the Chief Fire Officer has been granted a very wide
discretion to be exercised insofar as the acceptance of a candidate for
appointment to the office of firefighter is concerned. The Defendant relies upon
Regulation 3 as the basis for his argument that the Chief Fire Officer acted
unlawfully by exempting the Claimants from the physical training component
and or the fitness for service medical requirement. However, this Regulation
imposes no such duty on the Chief Fire Officer. I am of the view that the Chief
Fire Officer is imbued with the power to exempt the Claimants from the physical
requirement of the training program as well as a medical requirement on the
facts of this case. I note that in Latchoo’s case he had been confined to desk
duties since 2006 after he was injured on the job carrying out the duties of a
firefighter. In Kallas’ case she too had been injured on the job whilst in the course
of her employment as a firefighter in 2008. Up to this time her duties involved
the physical aspect of the job as a firefighter. After the injury she was confined to
desk duties and did not participate in any drills and physical training to the full
knowledge of her superiors. It seems to me that the requirement of fitness for the
Fire Service as outlined in the Fire Service Order supra would include fitness to
serve as a firefighter confined to administrative duties as these Claimants were.
The then Chief Fire Officer was well aware of the capacity in which these officers
served and he clearly took that into consideration in determining that they
would be exempt from the physical aspect of training at the Fire Service Training
School. I have taken into account the evidence of these Claimants which is not
disputed that for several years before they were accepted into the Fire Service
Training School they carried out desk duties. In the circumstances therefore, I do
not consider that the former Chief Fire Officer in making this promise to the
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Claimants was in breach of his statutory duty. In the circumstances I hold that
the expectation of the Claimants based on the promise given them by the Chief
Fire Officer was lawful and therefore legitimate.
ISSUE (b)
Analysis
Was it fair in all the circumstances for the Chief Fire Officer to resile from the
promise made?
[45] The Defendant has argued that even if the Court were to find that the Claimants
were the beneficiaries of a Legitimate Expectation in the terms outlined above it
was not in the public interest for the Claimants to be appointed fire officers in the
circumstances where they could not meet the physical requirements of the job.
On that basis, they submitted, it was entirely fair for the Defendant to resile from
the promise. As the Paponette case establishes once the Claimants have proved
that they’re the beneficiaries of a Legitimate Expectation the onus shifts to the
Defendant to justify the frustration of that Legitimate Expectation. He must
identify the overriding interest upon which he relies to justify the frustration of
the expectation.
[46] My duty is to determine whether it was fair in all the circumstances for the
Defendant to resile from his promise and thereby frustrate the Legitimate
Expectation. The material which the Defendant has put before me to justify the
frustration of the Claimants’ Legitimate Expectation was that the Claimants
cannot fulfil their duty under Section 35 of the Fire Service Act to preserve life
and property from damage or destruction because of their respective medical
condition. It is clear from the evidence that the Defendant in considering the
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public interest did not take into account the fact that the Claimants had been
performing administrative duties before and during the period of their
attendance at the Fire Service Training School. He did not put in evidence before
the Court any material to suggest that firefighters’ duties are strictly physical nor
is there any evidence to deny that a firefighter may be restricted to
administrative duties.
[47] Additionally, the Defendant in his affidavit spoke at length about his concerns
that these Claimants were enrolled in the Fire Service Training School but were
not participating in physical activities. After he ordered an investigation and
received a report annexed as ‘N.R. 3’ he decided that it was not in the public
interest to have the Claimants continue with the program having regard to the
duties of a fire officer and the Claimants’ medical condition. The report to which
the Defendant referred contained an inaccuracy in paragraph 5 thereof. The
investigator there reported that Chief Fire Officer Williams altered the
arrangement by which Kallas was exempt from physical activity after two weeks
by insisting that she was now to take part in all physical activities. This is in
direct contrast to the evidence of Acting Divisional Fire Officer Kenneth Stephen
as revealed in paragraph 6 of his affidavit. This also contradicts the evidence of
Marsha Kallas22 wherein she deposed that the only change to the original
promise given by Chief Fire Officer Williams was that she was no longer
permitted to leave the Fire Service Training School but that she had to remain
there for the entire period of training. The promise of exemption from physical
activity was never rescinded. From the above it is clear that the Defendant relied
upon material that was inaccurate in arriving at his decision to resile from his
promise. This item that he relied upon was extremely important to his decision
since it indicated that the former Chief Fire Officer had in fact resiled from his
promise to the Claimant that she be exempt from physical activity. I am therefore
22
Affidavit of Marsha Kallas filed on 21st March 2014 para 2, 3
28
led to the conclusion that he misdirected himself by taking into account
erroneous material in coming to a decision that he should frustrate the
Legitimate Expectation of Kallas in particular. It was also unfair to this Claimant
in all the circumstances to have done so.
[48] I therefore hold that there is no or no sufficient public interest for the Defendant
to have breached the Legitimate Expectation of the Claimants that they be
exempted from the physical aspect of the training at the Fire Service Training
School; that it was unfair for the Defendant in the circumstances to have
suspended them from further participation in the training pending the receipt of
a medical report. I also hold that the Defendant’s decision to suspend the
Claimants from training pending a medical report evidencing their fitness was
not a proportionate measure on the facts of this case.
[49] I note that the Claimants had passed all their exams at the Fire Service Training
School up to the time that they were suspended. I am of the view that they
should be permitted to complete their training at the Fire Service Training School
with the exemption from physical activity. Once successful then in accordance
with Regulation (3)(1) of the Fire Service (Term and Conditions of
Employment) Regulation, they become eligible as candidates for appointment to
the Fire Service. At this time the issue of their appointment is remitted to the
Public Service Commission for action in light of the finding of this Court that
they are the beneficiaries of a Legitimate Expectation of a substantive benefit that
they would be absorbed into the Fire Service as firefighters upon successful
completion of training with exemption from the physical aspect of said training.
CONCLUSION
[50] In the circumstances, I grant the following reliefs:
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a) a Declaration that the Chief Fire Officer’s decision contained in the
notification dated March 15th 2013 is unlawful in that in arriving at this
decision the Chief Fire Officer failed to take into account relevant matters
and or unfairly disregarded relevant facts and arrived at a decision which
was based on a material misunderstanding of the facts and or a disregard
of relevant matters;
b) a Declaration that the Claimants had a Legitimate Expectation that they
would be permitted to complete training at the Fire Service Training
School, despite their medical conditions, and if successful be absorbed into
the Fire Service;
c) an Order of Certorari to bring the decision to suspend the Claimants
before the Court and to quash the said decision of the Chief Fire Officer;
d) that the Claimants be allowed to complete their training at the Fire Service
Training School and once successful the Public Service Commission deal
with the issue of their appointment as firefighters in conformity with the
decision of this Court that they are the beneficiaries of a Legitimate
Expectation that they would be absorbed into the Fire Service upon
successful completion of their training at the Fire Service Training School
exemption from the physical aspect of said training;
e) that the Claimants be paid for the loss of salary from the date of
suspension to the date of judgment;
f) The Defendant to pay the Claimants’ costs.
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Joan Charles
Judge