Appeal court: Public servants entitled to increments, unless lawfully withheld

Public servants on incremental salary scales are presumptively entitled to annual pay increases, which cannot be withheld unless the Government follows the statutory procedure for doing so, the Court of Appeal has ruled.
The court, in a decision involving former legal officer Kerrie-Ann Dryden, affirmed that under Regulation 38 of the Public Service Regulations (PSR), 1961, increments may only be withheld, deferred or suspended by the governor general acting on the recommendation of the Public Service Commission.
The ruling arose from Dryden’s appeal against the Ministry of Economic Growth and Job Creation and others over the non-payment of her salary increments between 2016 and 2021.
The Court of Appeal found that the ministry failed to comply with Regulation 38 and ordered that Dryden be paid the increments and related sums due from 2016 until her resignation from the public service in 2022.
Court of Appeal President Marva McDonald-Bishop, who sat on the panel with Justices Jennifer Straw and David Fraser, said the payment of an increment “is not to be treated as a matter of unfettered discretion”.
“The proper starting point is that an officer who is placed on an incremental salary scale has a presumptive entitlement to progress along that scale when the increment becomes due,” McDonald-Bishop said. “That entitlement is not absolute. It may be displaced where the employer establishes both a lawful reason for doing so and compliance with the procedure prescribed by regulation 38 of the Public Service Regulations, 1961.”
Straw said the “entire thrust” of Regulation 38 was that an officer should receive an increment unless there was a good reason to penalise the officer for inefficiency, unsatisfactory service or misconduct. She said that even where a penalty was imposed, it should be for a limited period and subject to periodic review.
Dryden, a legal officer who joined the public service in 2005, filed judicial review proceedings claiming that the ministry and her supervisor, Audrey Sewell, failed to comply with Regulation 38 and the Government’s Performance Management and Appraisal System (PMAS).
She argued that she was entitled to the increments as a matter of law and that the failure to notify her that they were being withheld breached her constitutional right to a fair hearing under Section 16(2) of the Charter of Fundamental Rights and Freedoms.
In her affidavit, Dryden said she began pursuing the appraisal process in 2021 to facilitate payment of increments she believed had accrued between 2016 and 2020. She said that despite submitting the required documents and sending follow-up emails, the review was delayed.
Dryden said she received a response in November 2021 accusing her of “hounding” her supervisor to complete the appraisal, and that subsequent correspondence reflected hostility between them. The appraisal was eventually completed, with her performance for the 2016-2020 period assessed as unsatisfactory.
In a further affidavit, Dryden alleged that she was subjected to repeated unfair accusations, belittling and reprimands, which caused her distress and embarrassment. She also claimed she was excluded from certain activities, including a senior management retreat in 2019, despite performing her duties satisfactorily. She said the circumstances affected her professional advancement and contributed to her decision to resign on August 10, 2022.
Dryden had initially brought her judicial review claim against the ministry, the Public Service Commission, the Attorney General of Jamaica, and Sewell. However, Justice Simone Wolfe-Reece dismissed the claim, finding that neither the PSR nor the Staff Orders created an absolute right to receive increments on the anniversary of appointment.
Wolfe-Reece held that increments were discretionary and depended on satisfactory performance reviews.
On appeal, Dr Lloyd Barnett, representing Dryden, argued that annual increments formed part of the terms of her employment and could not be withheld without compliance with Regulation 38. He submitted that the ministry failed to follow due process, including proper notification and the required procedures for withholding payment.
He further argued that delays and procedural failures deprived his client of a fair hearing, warranting mandamus and damages.
Counsel for the respondents, Faith Hall, argued that increments were discretionary and depended on satisfactory performance evaluations under the PMAS. She emphasised the appellant’s failure to adhere fully to the PMAS process, including late submission of self-assessments and non-engagement in appeals procedures, thereby justifying non-payment. Hall argued that no constitutional breach or bias existed.
The Court of Appeal, however, found that the respondents failed to demonstrate that the statutory procedure had been followed before withholding Dryden’s increments. It also identified shortcomings in the administration of the PMAS, including delays in completing appraisals, the absence of agreed work plans, and the failure to provide timely notice of performance concerns.
In allowing the appeal in part, the court set aside aspects of the earlier decision and substituted its own orders, including an order for payment of the outstanding increments.
“The learned judge ought to have granted an order of mandamus (or any like order) compelling the payment of the increments to which the applicant was entitled from 2016 to 2021 and up to her resignation. Declarations should also have been made concerning the appellant’s entitlement to increments and the failure of the ministry to observe Regulation 38 of the PSR,” said Straw.
The court, however, rejected Dryden’s claim of actual bias against her supervisor and found no breach of her constitutional right to a fair hearing.
The court declared that the ministry and Sewell failed to comply with Regulation 38 and ordered the ministry to process and pay Dryden’s outstanding increments and related entitlements, including consequential pension benefits.
The court also awarded interest at three per cent per annum on outstanding payments from their due dates until the date of judgment, and thereafter in accordance with the law.
No damages were awarded.
tanesha.mundle@gleanerjm.com