CJ orders reinstatement of cop dismissed for owning, operating minibus

Aug 05, 2012 News

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His name was on the registration of a minibus as the co-owner and he was involved in an accident while driving a minibus, but Chief Justice Ian Chang has ruled that the Commissioner of Police had no right to fire Detective Constable Mark Kendall.
Kendall was given marching orders on June 7 last year on the grounds that “having without the consent of the Commissioner of Police, (he) operated mini bus BKK 7580 for hire, contrary to Section 32 (1) (a) of the Police Act Chapter 16:01…”
His discharge was not preceded by any departmental charge or hearing and Kendall stood to lose his benefits such as pension benefits after 15 years of service.

After examining the facts of the matter, which were presented by attorney at law Patrice Henry, the Chief Justice in his written ruling, found that the Commissioner of Police had no power under Section 35 (1) of the police act to discharge Kendall from the force on the basis of a breach of Section 32 (1) (a) of the said act.
He ordered that Kendall be forthwith reinstated into the strength of the Guyana Police Force and that he be paid his salary retroactive from June 7, 2011.
Kendall, who joined the Guyana Police Force in 1995, had sought damages in excess of $300,000 plus his benefits in the wake of his dismissal from the Force.
However, the Chief Justice ruled that the court had seen it fit to order reinstatement rather than the payment of damages because “this is a case of the Commissioner purporting to exercise his power of discharge under Section 35 (1) of the Police Act when the factual basis giving rise to the exercise of such power did not at all exist.”
The Chief Justice said that the exercise of the discretion of the Commissioner was therefore jurisdictionally misconceived rather than procedurally misconceived.
According to a senior police officer, the Chief Justice’s ruling could have a significant bearing on the attitude of ranks and the Force’s administration, since it is a well known fact that many officers, including senior ones, are engaged in “outside business”.
In Kendall’s case, the main bone of contention is the police’s position that a rank must secure the consent of the Commissioner to engage in any other business.
In this case, the Commissioner of Police, who at the time was Henry Greene, had contended that Kendall had breached the police act by operating a minibus for hire.

According to facts presented in the case, prior to his discharge, Kendall was a detective for 14 years and during that time, he underwent several courses.
In his affidavit, he disclosed that he was instrumental in cracking several high profile murder cases, including two which were before the High Court, in which he would have to testify.
Kendall was also rewarded for solving a case involving the kidnapping of a child. He had no job-related problem.
He testified that in December he was written to by Divisional Commander George Vyphuis who required him to write a statement showing cause why he should not be discharged from the Force.
In his response to Vyphuis, Kendall denied that he had ever operated minibus BKK 7580 for hire.
“Please be advised that I merely assisted Denise Fredericks in the purchase of the said mini bus and she chose to include my name on the registration of the bus,” Kendall had responded.
The vehicle’s registration showing Kendall to be a co-owner of the bus was tendered in court.
The Detective Constable contended that Fredericks was his reputed wife.
Under cross examination, Kendall admitted that in 1999 he was driving a minibus when he was involved in an accident.
But under re-examination, he denied that he was operating the bus for hire when he was involved in an accident and added that he never operated it for hire. In fact, he claimed that his reputed wife, Fredericks, would operate the bus for hire using a driver and would collect the money.
In his ruling, the Chief Justice noted that the mini bus was registered in the names of Kendall and Fredericks on August 29 2007.
However, Kendall got married on April 2010, not to Fredericks, but to another woman. The letter from his Commander asking him to show cause why he should not be dismissed was dated eight months after the marriage and long after he had ceased his association with Fredericks and the bus.
“The discretionary power of the Commissioner of Police to discharge the plaintiff from the Force was based on prior finding that the plaintiff did carry on a business or trade involving the use of the said bus….”

The Chief Justice questioned whether the fact that Kendall admitted to driving the bus at times and that he was the registered co-owner, gave sufficient rise to reasonable finding that he was involved in using it for hire.
“I think not,” the Chief Justice stated, adding that it does appear that it was not open to the Commissioner of Police to reasonably find that Kendall himself was using the bus for hire, or to put it in the words of Section 32 (1) (a), that he was carrying on “business or trade” in using the bus for hire.

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