Coastguardsman denied promotion, gets $175,000 in damages

Justice Kevin Ramcharan -

A HIGH COURT JUDGE ruled that a TT Coast Guard (TTCG) officer was unlawfully denied promotion and ordered the state to pay $175,000 in damages after finding that flawed performance appraisals and an unproven incident involving a missing weapon were wrongly used against him.

In a ruling on December 30, Justice Kevin Ramcharan held that Coast Guard Lt (Naval) Chevon Diaz was wrongly denied promotion to acting lieutenant commander and that irrelevant and unsupported allegations tainted decisions affecting his seniority, pay and career progression.

Diaz, who has served in the TTCG for about 18 years, brought judicial review and constitutional proceedings against the commanding officer of the Coast Guard, the Defence Force Commissions Board and the Attorney General. He argued that he should have been promoted in line with established practice, that junior officers were promoted ahead of him, that adverse appraisals relied on an incident for which he was not responsible, and that he was unfairly denied the Efficiency Medal.

In a sharply critical assessment of the State’s evidence, Ramcharan said the court viewed portions of the affidavit evidence of then-Coast Guard commanding officer Capt Don Polo (now Chief of Defence Staff) “very sceptically,” noting repeated claims of lack of knowledge about matters that directly involved him. The judge said the defendants failed to adequately confirm or refute key allegations with competent evidence.

The court accepted Diaz’s account of a 2018 incident involving a missing weapon, finding that Diaz was not in command of the vessel when the weapon was discovered missing and that a rating who was not a member of Diaz’s crew was responsible. Because there was no finding of guilt against Diaz, the judge ruled that his seniority could not lawfully be affected and that negative appraisals tied to that incident should not have been used to penalise him.

Justice Ramcharan said, “This court feels compelled to address the evidence filed on behalf of the defendant.

“On several occasions, Capt Polo averred that he could not admit or deny certain allegations because it was not within his knowledge. “In so far as the allegations are relevant to the claimant's claim, one would have thought that the defendants would have provided information to either confirm or refute the allegations, or file further affidavits of persons with the relevant knowledge.

“Even more concerning, there are allegations made by the claimant which directly refer to Capt Polo, to which he responds by saying that he has no knowledge of the allegations. “Clearly that cannot be true. He must know about matters concerning him.

“Therefore, the court views Capt Polo's averments with respect to those issues very skeptically.

“I, therefore, accept the claimant's version of the events surrounding the missing weapon.

“Particularly the court accepts that the Claimant was not in command of the coast guard vessel when the weapon was discovered missing and that the a rating who was not a member of the claimant's crew was the one responsible for the disappearance of the weapon.

“Additionally, the claimant's seniority cannot be affected by the allegations as there was no finding of guilt against him.

“Further, as the negative performance appraisal deals with the weapons issue for which the claimant was undoubtedly innocent, it ought not have been taken into account in determining whether the claimant should ‘lose a year’.

“The court is therefore satisfied that the claimant was wrongly denied promotion.”

On the applicable promotion period, the court aligned itself with an earlier High Court decision and held that the relevant period was six years. Ramcharan ruled that Diaz ought to have been promoted to acting lieutenant commander on September 15, 2017 – six years after his appointment as a lieutenant – and to the substantive rank on September 15, 2020.

The judge also addressed Diaz’s claim regarding the Efficiency Medal, which requires 12 years of “irreproachable” service. While acknowledging that irreproachable conduct sets a higher standard than the absence of convictions, Ramcharan found that the weapons incident could not have brought Diaz’s reputation into disrepute because he was not responsible. The court ruled that irrelevant matters were taken into account and ordered that the medal decision be reconsidered based only on relevant factors, stopping short of directing that the award be granted.

On issues of annual performance appraisals and natural justice, the court held that Diaz was not denied a right to be heard, aligning with prior authority on appraisal procedures.

The court granted relief on multiple declarations and orders, amended to reflect the corrected promotion dates, and awarded Diaz $100,000 in compensatory damages and $75,000 in vindicatory damages. Interest at 2.5 per cent per annum was ordered from the date of the claim to judgment, along with costs.

Attorneys Arden Williams and Mariah Ramrattan represented Diaz.