“The PSC has defended the conduct of the department heads, permanent secretaries and other supervisors against whom these complaints have been made even though the evidence is crystal clear. This is perhaps not surprising since the PSC would be the body with ultimate culpability. This leads me inexorably to the conclusion that either the members of the PSC are not sufficiently familiar with the Regulations to give effect to them; are not concerned about ensuring that they are suitably complied with or are complicit in their failures.”
That is part of the conclusion arrived at by High Court Judge Justice Henry in her recent judgment in a case brought against the Public Service Commision (PSC) by the Public Service Union (PSU) in relation to 5 public servants denied opportunity for promotion while others of less academic qualification and experience were promoted over them.
The five public servants: Agnes Llewellyn, Elroy Boucher, Joel Poyer, Kejo Peters, and Conroy Daniel are among many who have complained about unfair promotions with the public service, which include police officers and teachers. There are approximately 5,000 public servants in this country.
Among the three issues before the court were: whether the PSC failed to comply with the procedures outlined in the PSC Regulations 15, 19 and 20 governing promotion; and whether the PSC failed to observe principles of fairness, transparency, and objectivity in exercising its functions under Regulation 19.
Elroy Boucher (president of the PSU) testified that he has had no assessment of his work performance since joining the service but he recalled that a performance management and development system was done between 2002 and 2005 across the public service on a trial basis. However, since then no assessment was done and the PSC abandoned all efforts to make it work and it failed to implement it.
Hospital administrator Grace Walters said she was not aware that there was no assessment for Boucher, but she said “We have some assessments of staff in the Engineering Department. She maintained that staff in the Biomedical Department has been assessed and stated that she had a few assessments of certain persons in the Department in her office. She claimed that she had one copy of those while others were sent to the ministry and that no one had asked her for a written assessment of any of those.
“I draw the irresistible inference that the Ministry of Health has neither prepared nor maintained annual reports in respect of work undertaken by Mr. Elroy Boucher during the currency of his employment there and that the failure was deliberate and intentional,” Justice Henry stated.
Poyer, who works in the Forestry Department, testified that he received no evaluation or assessment since 1988 and that no such assessment or evaluation has taken place in the forestry department since that time.
Permanent Secretary in the Ministry of Agriculture Raymond Ryan admitted that the Ministry had not disclosed to Poyer any documents created in relation to him within the last 12 years and had not shown him any written evaluation. He insisted that Poyer has had performance appraisals of his work.
Ryan said each officer is required to prepare and submit monthly reports covering the matters outlined in the ministry’s results-based work plans, and indicating what work the officer has done. He stated that these reports are then discussed with the officer by the supervisor regarding their performance. However, Ryan could not say how many times those assessments had been done since Poyer joined the service. He indicated that he would have to check the system to see if Poyer had ever been evaluated.
Ryan was quoted as saying “I am aware that the PSC has not supplied a single evaluation of any of the officers in this case.”
Justice Henry said Ryan was “brusque in his delivery.” She said “his nonchalance was remarkable given the sensitivity of the issues under consideration” and that he accepted that materials which were ordered to be disclosed were not supplied to the PSU.
“This is a blatant breach of a court order and of the PSC’s duty of candor to the court. In essence, Mr. Ryan has admitted that the annual confidential reports stipulated by regulations 19 and 27 are not prepared and maintained by the relevant officers in his ministry. This is a direct breach of the law,” Justice Henry stated, adding that she found that the Ministry of Agriculture’s breach of the regulations was deliberate and intentional.
On the matter involving prison officer Daniel, Justice Henry said he testified that he has never been assessed or evaluated. She said Superintendent of Prisons Brenton Charles countered saying that prison officers are assessed and evaluated but he supplied no documentary evidence.
“I draw the inference that no such assessments have been conducted in the prison in respect of Mr. Conroy Daniel. I find that such failure was deliberate and intentional,” Justice Henry stated.
In the case of Peters, Justice Henry said he testified that he had never been assessed while posted at the Ministry of Health and subsequently at the Customs Department. She said that former Permanent Secretary in the Ministry of Health Luis De Shong said Peters was assessed and evaluated by others who worked with him in the department of health and that those were not in writing but given orally to him by senior assistant secretary Cheryl Jack and one Odette Barrow. She said De Shong said that the assessments and evaluations given to him were negative.
The court heard that Llewellyn who joined the service in January 1987 at the Customs Department and was promoted to the senior customs officer in 1996, was never assessed or evaluated having been transferred to the Ministry of National Mobilization in 2008. Two persons working in that Ministry, Kenroy Boucher and Celena Mc Donald, testified as witnesses.
“Whatever the reasons, the consequences of inaction could potentially lead to a total breakdown of the system and in the case at bar has resulted in denial of due process to the affected public officers.
For all the foregoing reasons, I am satisfied that this is an appropriate case in which to make the declaration requested in respect of aspects of the operational machinery of the promotions system of promotion in the public service. I am satisfied that the PSC has failed to comply with Regulations 15, 19 and 20 of the Public Service Regulations in relation to promotions for which public officers Agnes Llewellyn, Elroy Boucher, Joel Poyer, Kejo Peters, and Conroy Daniel have been eligible during their service in the public service,” Justice Henry stated.

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