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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

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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.

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[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

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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,

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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.

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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)

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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