Defence Force to compensate retired major

A FORMER acting army major will be compensated for the breach of his rights in the TT Defence Force’s (TTDF) failure to prepare his performance appraisals for a decade, which hindered his assessment for promotion.

Peter Fletcher will now return to the judge who held his right had been breached for an assessment of what he is owed.

Justices of Appeal Mark Mohammed, Ronnie Boodoosingh and James Aboud made the order on November 7.

The Attorney General had brought the appeal before them against a ruling of High Court judge Kevin Ramcharan, though Ramcharan had granted several declarations that Fletcher’s rights had been violated.

Although the AG’s appeal was allowed in part, the court upheld Ramcharan’s finding on the performance appraisals.

Those declarations, relating to the promotion of two of Fletcher’s colleagues ahead of him and the TTDF’s failure to provide him with a discharge certificate, were struck out.

Boodoosingh, who delivered the judgment, said performance appraisals were a recognised mechanism for promotions in the TTDF.

In deciding the case, Boodoosingh noted the reason for the reports not being completed was an “administrative error,” and not because it was not the practice, or that they were not important.

“The judge was justified in those circumstances to find that Mr Fletcher had a justifiable expectation that performance appraisals would be prepared and issued for him.

“Further, Mr Fletcher was clearly prejudiced by the failure to issue them…

“It seems to me, having regard to the evidence before the court, that, had his performance appraisals been issued, Mr Fletcher’s commanding officer would have been entitled to recommend him for promotion.”

“However, Fletcher was not confirmed in the post of major, in which he had acted since 2005.

He said when Fletcher retired, had he been confirmed, this might have affected his retirement benefits or any pension he may have been entitled to, and the evidence suggested it was likely he would have been confirmed, since his superior had previously described his promotion as “long overdue.”

“Further, had he been confirmed, he may have had the opportunity to be promoted to the next higher rank, assuming a suitable vacancy existed, and to continue in service for three more years.

“How realistic this chance was has to be assessed in all the circumstances, and whether, consequently, the breach warrants a compensatory award.

These matters, he concluded potentially affected Fletcher’s income and benefits and possibly continued to affect his retirement benefits, and therefore justified an inquiry into damages.”

This assessment, Boodoosingh said, would be better done by Ramcharan than a master.

On the judge’s findings on a breach in failing to provide a discharge certificate, Boodoosingh said while the TTDF’s explanation for not providing one was “almost bizarre” (lack of “covers” and appropriate paper for the discharge certificate), the failure was not a breach.

He also noted that protection of the law was not a closed concept.

“Its ambit will develop and evolve with time and circumstances, dependent on the facts of the case.

“But the cases also demonstrate that there is a necessary element of gravity or significance to the conduct or omission to be able to invoke the protection of the law clause of the Constitution.

“Not every failure of the State to provide something, which may be important personally to a citizen, would necessarily amount to a breach.”

The AG’s appeal on delay and alternative remedies was also dismissed.

Fletcher was represented by Kingsley Walesby and Alvin Ramroop.

Natoya Moore, Maria Belmar, Svetlana Dass and Kadine Matthew represented the AG at the appeal.

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