PSU wins ‘unfair transfer’ case against government

The Public Service Union (PSU) has been successful in yet another legal matter brought against the Government.

The Union’s latest success in court against the Public Service Commission (PSC), the chief personnel officer and the permanent secretary in the Ministry of National Security was outlined in a judgement delivered by presiding judge, Justice Esco Henry last week.

The Union’s claim was made on behalf of one of its members, Jamali Whyte, who they say was “subjected to unfair, unreasonable and unlawful conduct by his administrative heads within the Ministry in which he serves”.

Whyte is a junior clerk in the Inland Revenue Department (IRD) on the Grenadine island of Union Island, and while the IRD is part of the Ministry of Finance, Whyte was employed by the Ministry of National Security.

According to PSU’s claim, Whyte was summoned to mainland in April 2018 by the then permanent secretary in the Ministry of National Security, and directed to proceed on eight days vacation leave and notified both in writing and verbally of his transfer to the Maritime Department at the Cruise Ship Terminal.

The Union’s claim also said Whyte was not supplied with reasons for the directive and that Whyte was aggrieved by those decisions.

“Among their complaints is that a transfer or re-assignment to an office on the mainland would disrupt his family life and require that he incur extraordinary living expenses which would be unsustainable,” the published judgment said. “The Union wrote unsuccessfully to the Public Service Commission (‘PSC’) and the Chief Personnel Officer (‘CPO’) seeking audience to make representations on Mr. Whyte’s behalf.”

One of the issues brought forward in court was whether the decisions by the Permanent Secretary to transfer or reassign the claimant and to order him to proceed on eight days vacation leave were done in a procedurally improper manner, unlawful or unreasonable.

Other issues entailed whether the decision by the CPO and PSC respectively to not allow Whyte to be heard was unlawful, unjust and/or unfair and whether the PSC acted unlawfully or procedurally improper by failing or refusing to state the public interest basis for forcing the claimant on compulsory leave.

And Justice Henry declared that the Permanent Secretary’s decision to direct Whyte to proceed on eight days’ vacation leave was not unreasonable or unlawful or arrived at in a procedurally improper manner.

The judgment also noted that the PSC did not act unlawfully or procedurally improper by failing or refusing to state the public interest basis for forcing the claimant to take compulsory leave.

But the Justice Henry’s judgment also said “the Permanent Secretary’s decision to transfer Mr Whyte was arrived at in a procedurally improper manner and is hereby quashed”.

“The decision by the Chief Personnel Officer and the Public Service Commission not to afford Mr Whyte an opportunity to be heard on the decision to transfer him to the Maritime Department, Cruise Ship terminal in Saint Vincent was unjust, unfair, unlawful and arrived at in a procedurally improper manner,” it said.

Henry ruled that the issue of whether Whyte is to be transferred to the Maritime Department is remitted to the Permanent Secretary in the Ministry of National Security for determination in accordance with the law.

And the PSC is to pay to the PSU costs to be assessed if not agreed. The Union shall file and serve by May 30, 2020 an application for assessed costs.

The PSU was represented by lawyers Jomo Thomas and Shirlan Barnwell.

And the defendants — the permanent secretary, the CPO and the PSC were represented by lawyers Duane Daniel and Kezron Walters.

The PSU won a similar case against the Government in December 2018 when Justice Henry ruled that the PSC failed to be fair, transparent and objective in the promotion of some public service officers.

Elroy Boucher, the president of the PSU at the time said that the judgment on that matter would help to “open the door for us to take further legal action”.

(Read the entire judgement at https://www.eccourts.org/the-public-service-union-v-permanent-secretary-of-ministry-of-national-security-3/)