sto­ries by Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Chief of De­fence Staff (CDS) has been giv­en a month to re­con­sid­er the pro­mo­tion of a se­nior T&T Coast Guard (TTCG) of­fi­cer, who claimed that he was by­passed for pro­mo­tion in favour of a ju­nior col­league.

High Court Judge Ricky Rahim made the or­der as he par­tial­ly up­held a ju­di­cial re­view and con­sti­tu­tion­al mo­tion law­suit brought by Chief Pet­ty Of­fi­cer Hay­den De Four.

Ac­cord­ing to the ev­i­dence, De Four en­list­ed in 1996. In De­cem­ber 2022, De Four par­tic­i­pat­ed in a pro­mo­tion ex­er­cise to the next rank of Fleet Chief Pet­ty Of­fi­cer.

He filed the law­suit af­ter a col­league, who en­list­ed af­ter him, re­ceived the pro­mo­tion ahead of him.

The T&T De­fence Force (TTDF) de­nied any wrong­do­ing, as it claimed that De Four’s col­league re­ceived the pro­mo­tion, as he was bet­ter suit­ed for the role be­cause of his train­ing and ex­pe­ri­ence.

In de­ter­min­ing the case, Jus­tice Rahim ruled that De Four’s con­sti­tu­tion­al right to pro­tec­tion of the law was breached by the TTDF in its han­dling of the pro­mo­tion ex­er­cise.

He not­ed that the TTDF had failed to sup­ply per­for­mance re­ports for De Four, which would en­able him to ver­i­fy De Four’s claims that he had the rel­e­vant ex­pe­ri­ence as well as se­nior­i­ty.

“The non-pro­duc­tion of the re­ports leaves the on­ly ev­i­dence on the is­sue of qual­i­fi­ca­tions and ex­pe­ri­ence giv­en by the claimant, and so the court ac­cepts his ev­i­dence as be­ing fac­tu­al,” Jus­tice Rahim said.

“The non-con­sid­er­a­tion of these mat­ters of his ex­pe­ri­ence would be fa­tal to the prop­er ex­er­cise of the dis­cre­tion to pro­mote among those sim­i­lar­ly qual­i­fied,” he added.

Jus­tice Rahim al­so point­ed out that the TTDF failed to ex­plain how it ap­peared that the se­nior­i­ty of De Four’s col­league was brought for­ward.

“Cer­tain­ly, this would have been a fact that would have af­fect­ed the prospects of ad­vance­ment of the claimant to his dis­ad­van­tage,” he said.

“Left un­ex­plained, the el­e­va­tion reeks of un­fair­ness and de­prives the claimant of the pro­tec­tion of the law,” he added.

How­ev­er, Jus­tice Rahim found that his con­sti­tu­tion­al right to equal­i­ty of treat­ment was not breached, as he could not use his col­leagues as a com­para­tor, as they had ex­pe­ri­ence in dif­fer­ent dis­ci­plines.

He al­so dis­missed De Four’s claim that he should have been pro­mot­ed strict­ly on the ba­sis of se­nior­i­ty.

Not­ing that the TTDF had to con­sid­er a num­ber of fac­tors, in­clud­ing se­nior­i­ty and ex­pe­ri­ence, Jus­tice Rahim found that the TTDF act­ed law­ful­ly and not in breach of es­tab­lished pro­ce­dures.

He al­so not­ed that De Four did not have a le­git­i­mate ex­pec­ta­tion that he would be pro­mot­ed based on his se­nior­i­ty.

“There be­ing no promise or rep­re­sen­ta­tion made to the claimant that he would be pro­mot­ed whether di­rect­ly or by the pre­vi­ous acts of the TTCG, nor any pol­i­cy to the ef­fect, the claimant has not dis­charged the bur­den on him in that re­gard,” he said.

In his rul­ing, Jus­tice Rahim is­sued a de­c­la­ra­tion in re­la­tion to the pro­mo­tion de­ci­sion and quashed it.

He gave the TTDF 30 days in which to re­con­sid­er De Four’s pro­mo­tion.

He stat­ed that it would be un­fair to quash his col­leagues’ pro­mo­tion and di­rect that he be pro­mot­ed. “What is re­quired is a re­con­sid­er­a­tion of whether, in light of the in­for­ma­tion pro­vid­ed by the claimant, he ought to be pro­mot­ed from his base date,” he said.

The State was al­so or­dered to pay com­pen­sa­tion to De Four, which would be cal­cu­lat­ed by a High Court Mas­ter at a lat­er date.