Grounded

A retired marine pilot, who had given 43 years of service to the country, was left disappointed after he lost his fight in the Supreme Court to challenge a decision by the Port Authority of Jamaica to not extend his pilot’s licence.

The 66-year-old applicant, Bruce Rattray, who had intended to further contribute to the entity by way of mentorship, training, or to temporarily fill any vacancy relevant to his expertise, had applied for an extension last November, months after reaching the retirement age of 65.

The Port Authority, however, refused his request a month later on the basis that he had underperformed, coupled with concerns about his health and well-being, specifically with regard to his weight.

Following unsuccessful attempts to have the authority reverse the decision, Rattray applied for leave to apply for judicial review in June after the Port Authority reaffirmed its decision in a letter in April.

The applicant contended that there was a medical requirement for the determination of his extension but that the Port Authority had refused to conduct the medical examination to determine whether he was fit to continue.

Rattray also sought remedies, including an order of certiorari to quash the unlawful and unfair decision of the Port Authority and an order of mandamus, compelling the Port Authority to organise him to do a medical examination, and, if successful, to compel the Authority to extend his marine pilot licence.

He also wanted a declaration that the Port Authority’s decision was manifestly unreasonable and also that it was irregular, null and void because the board is not empowered to appoint, discipline, promote, or extend the service of a marine pilot.

However, Justice Andrea Pettigrew-Collins, who ruled on the matter earlier this month, refused him leave to apply for judicial review based on his failure to properly explain the reason for his delay in making the application.

Pettigrew-Collins also concluded that he did not show that he had “any arguable grounds with a realistic prospect of success”.

Rattray’s explanation for the delay was that he had discontinued his working relationship with his lawyer and had filed soon after he had secured the service of another attorney.

The judge, in her published decision, said that at least a reasonable explanation was required for the non-compliance with the timeline set by the court but that Rattray “offered no good reason whatsoever for this period of the delay from the time when the Authority communicated the affirmation of its decision until the notice of application was filed”.

She added: “He cannot, therefore, overcome the hurdle that he has no good reason for the delay.”

Additionally, she found that the applicant had failed to pursue the avenue for redress made available to him by the Pilotage Act and had not sought to show why the avenue of an appeal to the Court of Appeal would not be suitable in the circumstances.

Despite those initial findings, Pettigrew-Collins still went ahead and determined the case on its merit.

However, she found that there was no prospect of success.

“He cannot properly argue that the decision not to renew his marine pilot licence was not made by the competent authority. He cannot properly argue that the conduct of the Port Authority gave rise to a legitimate expectation on his part that his marine pilot licence would be renewed upon retirement as long as he satisfactorily underwent a medical examination.

“The substantive basis on which he sought leave, namely, that he was not permitted to undergo a medical examination, cannot avail him,” she said.

She found that the Port Authority had demonstrated that there was a basis on which it could have decided that it was not expedient to extend Rattray’s marine licence beyond the usual retirement years.

“The respondent has set out reasons for determining that it was not expedient for the Authority to renew the applicant’s licence. When one considers the meaning of expedient … it becomes evident that Mr Rattray does not stand on good grounds,” she said.

Hortense Ross-Innerarity, superintendent of pilotage at the Port Authority, in her affidavit, filed by the Authority, denied that Rattray’s performance had been exemplary throughout his years of service.

She revealed that she had written to him on numerous occasions towards the end of his tenure regarding his unsatisfactory performance and exhibited a number of letters, emails, a memorandum, and performance records either directed to him or related to him.

Regarding concerns about his health, Ross-Innerarity said she had expressed concerns about his ability to perform some of the functions he is required to undertake such as embarking and disembarking pilot ladders.

Rattray, in his defence, pointed to a December 22, 2023, letter of commendation he received from the Port Authority’s president and chief executive officer, recognising him for his long service and referring to his positive attitude, good work ethic, high-level of enthusiasm, and team spirit.

He also stated that the performance data was fictitious and that his scores had been purposely undervalued.

However, the judge said, “The performance data would, in my opinion, be a more accurate measure of Mr Rattray’s on-the-job performance than the assertions in a one-off letter, which, on the face of it, speaks in very general terms and came from the chairman of the board, who probably never exercised direct supervision over Mr Rattray.

Attorney-at-law Nelton Forsythe and Claudia Forsythe represented Rattray while Matthew Gabbadon was instructed by the director of state proceedings for the Port Authority.

tanesha.mundle@gleanerjm.com