Chief Fire Officer and another v Felix-Phillip and others

An acting appointment expressed as until further notice may constitute an appointment for a specified period under the Public Service Commission Regulations. Calendar dates are unnecessary if the temporary nature of the appointment is transparent and there is a fixed reference point for termination. Constitutional safeguards for public-service appointments coexist with the recognised category of temporary acting appointments. An acting officer is not entitled to preference for a later substantive appointment unless regulations expressly provide it. Relevant acting experience must be considered, but need not be preferred. A points-based promotion system is not irrational merely because it gives no such preference, particularly where it credits acting experience.

Thirty-eight Trinidad and Tobago fire officers sought judicial review after being appointed to higher ranks on an acting basis until further notice and later passed over for permanent promotion under a points-based system. Madam Justice Charles accepted their case. The Court of Appeal of the Republic of Trinidad and Tobago reversed that decision.

The appeal concerned whether the acting appointments were permanent because they were not for a fixed period, and whether the promotion system was irrational, unfair or contrary to the applicable regulations because acting officers should have received preferential treatment.

Disposition

The Board dismissed the appeal. Lady Arden delivered the judgment of the Board.

1. Temporary appointments. Regulation 2 of the Public Service Commission Regulations defines an acting appointment as a temporary appointment to a higher office. Regulation 50 permits termination of a temporary appointment on the expiry or other termination of an appointment for a specified period. Applying both purposive and textual interpretation, a specified period need not be defined by calendar dates or fixed in advance. It is sufficient that the appointment is transparently temporary, assessed against the facts known to both parties when it was made, and has a fixed reference point for termination. The phrase until further notice, coupled with the acting character of the appointment, satisfied that requirement.
2. The constitutional safeguards governing public-service appointments and promotions remained important, as explained in Endell Thomas v Attorney General of Trinidad and Tobago [1982] AC 113. However, the Constitution itself recognised acting appointments. A genuinely temporary appointment was therefore not converted into a permanent appointment merely because it was not for a predetermined fixed term. There was no evidence that the arrangements were a device for making permanent officers removable at will.
3. Aldric Tudor and Jhagroo v Teaching Service Commission [2002] UKPC 63 did not require a different result. Those decisions concerned appointments which were in substance indefinite, including retrospective fixed-term letters and terms which had expired when employment was ended. The passages relied on had to be read in that factual context. The Board also refused leave to raise a new argument that Regulation 50 did not apply to acting appointments, since it had not been taken below.
4. Promotion preference. Regulation 154(2) addressed urgent appointments where the full process might not have been followed and expressly provided that the acting officer should receive no preference for a substantive appointment. More generally, express provision would be required before an acting appointment under the Regulation 158 criteria could confer priority. Experience gained in the acting post had to be taken into account, but it was not preferred over greater merit.
5. Points-based system. The irrationality challenge failed. The system was not required to give acting officers preferential treatment and recognised experience obtained while performing duties in the vacant office by awarding points according to its duration. The Board would not prescribe the number of points that should have been awarded. No special carve-out was required for earlier acting appointees because the relevant orders stated that the appointments were not a prelude to substantive promotion.

• Privy Council: In [2020] UKPC 12, the appeal was dismissed.
• Court of Appeal of the Republic of Trinidad and Tobago: Reversed the decision of Madam Justice Charles.
• Trial court: Madam Justice Charles accepted the officers’ arguments concerning the status of the acting appointments and the promotion system.