Union Island’s Jamali Whyte is today a happy man not only because of the vindicating verdict handed down by Madame Justice Esco Henry per the judicial review of the Public Service Commission’s decidedly highhanded conduct towards him. He is also grateful to finally have the almost 2-year-long Court battle behind him.
“It was a great feeling because it’s been a while now since the matter has been before the Court – since 2018 – and finally having it over and done with was an overwhelming feeling. I am also glad that this case would set precedent for any other transfer that may come, especially those that are done in an unreasonable or vindictive form. Because as junior officers or employees in the Service you tend to get pushed around and once you don’t have a Union like the PSU to represent you, you’d have to take it and basically suffer,” Whyte shared with Asbert News Network from his Union Island home.
The Public Service Union represents public officers who are employed by the Government of St. Vincent and the Grenadines. “It claims that Mr. Whyte has been subjected to unfair, unreasonable and unlawful conduct by his administrative heads within the Ministry in which he serves. The PSU has brought this claim to vindicate what it contends are violations of Mr. Whyte’s rights to due process,” Madame Justice Henry supplied as part of her judgment’s background.
The Court learnt that Whyte is a junior clerk in the Union Island Inland Revenue Department office. On April 24, 2018 the then Permanent Secretary in the Ministry of National Security, Godfred Pompey, “summoned Mr. Whyte to mainland St. Vincent and the Grenadines where he was directed to immediately proceed on 8 days’ vacation leave and also notified in writing and verbally that he was being transferred to the Maritime Department, Cruise Ship terminal on mainland St. Vincent at the expiration of the leave.
“The PSU claimed that Mr. Whyte was not supplied with reasons for the directive that he proceed on compulsory leave of for the transfer. Mr. Whyte and the PSU are aggrieved by those decisions. Among their complaints is that a transfer or re-assignment to an office on mainland would disrupt his family life and require that he incur extraordinary living expenses which would be unsustainable,” the learned Justice’s continued to detail in her written judgment.
Appearing for the parties before Justice Henry were Jomo Thomas and Shirlan Barnwell for the claimant (Whyte together with the PSU) and Duane Daniel with Kezron Walters for the PS, PSC and the CPO – the defendants. The High Court Judge determined the central issues to be addressed from the case at bar were whether:
- “the decisions made by the PS to:
- transfer or re-assign Mr. Whyte to the Maritime Department on the mainland; or
- proceed on 8 days’ vacation leave;
failed to have regard to relevant considerations, were arrived at in a procedurally improper manner; are unreasonable or unlawful?
- The decision by the CPO and the PSC respectively not to afford Mr. Whyte an opportunity to be heard was unlawful, unjust and\or unfair; or
- 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
- To what, remedies if any, is the claimant entitled?
Relying upon the testimonies of PSU General Secretary Phillip Bailey, Elroy Boucher and Jamali Whyte, himself as the principal witness, the PSU was able to establish that the junior clerk was employed for “the past 11 years,” it was via an April 24, 2018 phone call which was transferred from his immediate supervisor on Union Island that he was summoned by then PS Pompey “to report to his office on mainland Saint Vincent before Friday, April 27th 2018.” Further, having “found it strange to have received such a call since it was the first time he had been contacted by the PS in that way, he spoke with the PSU’s first Vice President and the following day travelled to St. Vincent to meet the PS.”
To this day Whyte maintains his flabbergast as to Pompey’s transfer order and is still unsure regarding the former PS’ motives. “There’s rumors but I, really and truly, don’t go with rumors based on what was put forward to me – I respond to what is writing, what is in black and white – nothing was ever confirmed to me even though I asked,” he told ANN. He declined to repeat the scuttlebutt he did hear being bandied about saying, “to be honest I would prefer not to comment on those rumors because they are not relevant at the moment.”
In court Whyte testified that the PS’ response to his queries about the “abrupt and life disrupting decision” was rather vague despite Whyte’s continued press for clarity. “Based on the information I received about your attitude and your behavior at work, along with activities you are involved in, in Union Island. I can no longer have you working at the Union Island Revenue office,” Whyte recalled as being Pompey’s only response.
The only direct references to what may have precipitated the transfer order came from a trio of sources: former PS Pompey, Chief Personnel Officer Arlene Regisford-Sam and Police Corporal #132 Dawnette Alexander. The Court heard that in March 2018 Pompey “met with high ranking members of the Royal Saint Vincent and the Grenadines Police Force, during which he received certain sensitive information regarding Mr. Whyte. He testified that as a result he began to discreetly monitor Mr. Whyte’s activities through his immediate supervisor. He averred that within a few weeks of the referenced meeting he received a report from the Police and Customs about an incident involving Mr. Whyte.
“He indicated that based on reports received from two separate sources over a very short span of time, he thought it prudent and best to transfer/re-assign Mr. Whyte from Union Island to the Maritime Administration pending the outcome of investigations.”
PC 132 Alexander gave evidence that an investigation was launched as a result of an unspecified incident which occurred on April 21, 2018, while she was on duty at the Union Island police station. Whyte’s name “surfaced as a possible person of interest” in the matter which is being jointly investigated by the Customs and Excise Department and the RSVGPF; “under cross-examination she stated that she was one of the investigators and that Mr. Whyte went to the Union Island Police Station but while she did not question him, he made comments in her presence. She acknowledged that she did not conduct an interview with him. She did not know whether he was charged. No evidence was led that he was charged.”
It was painstakingly apparent that the defendants were clutching at straws according to the learned Judge’s analysis of the case. “In seeking to justify the impugned decisions it seemed, Mr. Pompey referred to allegations that Mr. Whyte refused to sign the attendance register while Mrs. Regisford-Sam asserted that there were reports in 2015 about his delinquency and tardiness in relation to studies he was pursuing at the University of the West Indies.
“No attempt was made by Mr. Pompey or the CPO to link them to the decision to transfer Mr. Whyte or to aver that those reasons were disclosed to him as informing the transfer determination, if this transpired. I make no finding that either of they did,” Justice Henry wrote.
Amongst the factors examined as Madame Justice deliberated on the first issue were whether the principles of natural justice were satisfied when all the facts were weighed; which necessitated an incisive look at several concepts including careful consideration of relevant dynamics and the fair administration of “discretionary power” afforded to State officials. Essential to the PSU’s toolkit was the case law as enshrined in “Doody v. Secretary of State for the Home Department in which Lord Mustill opined that ‘fairness’ is ‘an insistence greater openness, or… ‘transparency’ in the making of administrative decisions.’”
Counsel for the defense sought to establish whether the codefendants acted illegally, procedurally improper or otherwise unreasonably. They submitted Lord Diplock’s explanation of those terms in the case of Council of Civil Service Unions v Minister for the Civil Service.
Lawyer Jomo Thomas told us he pleaded with government officials “from… the highest level of state administration” to have the case withdrawn, to no avail.
“What has happened now is that there’s a certain arrogance in terms of the ways in which the State proceeds to deal with citizens. So once a particular official, a particular individual, a particular bureaucrat thinks about a person in the State a particular way, that individual is fired, is moved around and so many different things happen.
“And this is done with scant regard for the law. In many cases absolute disregard for the law and that’s why each time the government is challenged on the point the government loses. It is unfortunate because it shows that they are not learning anything from these cases. And all they have to do is to go and read the decisions to see when you have to do something else, ensure that your actions comport with the previous decisions of the Court.” Thomas shared with ANN.
Justice Henry also reflected on Cabinet’s role as a decision making, national policy framer. Ultimately she regarded that august body as having, “no inherent law making authority” though it “may make subsidiary legislation where authorized by law to do so.” Therefore and in particular regards to its creation of the Civil Service Orders, she was careful to note “that the CSO is not a piece of legislation and therefore dies not have the force of law…. Even if it had the character of law, the principles of natural justice would still be applicable in interpreting and applying its provisions.”
As an elucidation to her judgment on the first issue the learned Justice further wrote, “I am satisfied that Mr. Whyte’s personal circumstances were a substantially relevant factor to be considered. The PS’s failure to take them into account undoubtedly led to a flawed reasoning process which negatively impacted his decision-making and the outcome in an unfair manner. I find that he did not take account of Mr. Whyte’s family circumstances and this amounted to a failure to consider relevant factors in respect of the transfer.”
Justice Henry was satisfied that Pompey did in fact supply “adequate reasons for the transfer and related compulsory leave” in his April 25, 2018 letter to Whyte. She also stated her appreciation of Pompey’s indication “that he gave Mr. Whyte a general idea why he was being transferred so precipitously, but due to security concerns could not elaborate.”
To this the PSU countered that the established protocols for instituting disciplinary proceedings against Whyte for any report of criminal allegations or otherwise, were avoided. “It argued that the PS received no instructions or delegated responsibility from the PSC to act with respect to any allegations or report against Mr. Whyte.” Neither was there any evidence to support that the PS lodged a report with the PSC concerning the allegations that provoked his decisions.
Based on the PSU’s contention that the transfer was unlawful due to: no reasons being provided for the decision; the transfer was not expressly made to a named post and that it therefore did not comply with the letter and the spirit of the law, Justice Henry noted, “the CPO and the PS have pointed that it is usual that lateral transfers do not contain the specifics of the post to which the officer is being transferred. I accept their explanation. I therefore find that the transfer was not illegal.”
Justice Henry turned her mind to discern whether or not the defendants’ decisions to respectively deny Jamali Whyte his chance to be heard were illegal and/or unjust. She examined the PSU’s submissions that the PSC offered no response to its letters in the 5 weeks from April 26, 2018 when the PSC met and June 6, 2018 when the PSU claim was filed. The PSU also submitted “that the CPO and the PSC had ample time to address its concerns but refused to do so.” A PSC meeting was not even necessary, the PSU further contended, since Regulation 6 of the PSC Regulations could have been invoked and papers circulated to ask members for their written feedback.
She found that Mr. Whyte was not afforded the opportunity to have a say in his fate and classified the defendants’ ill-informed position as regrettable since the case at bar could have been “mediated or be made the subject of alternative dispute mechanisms….
“The CPO’s and the PSC’s failure to entertain his request for an audience was not the correct approach even after the claim was filed. The PSC has offered no compelling reason why extraordinary meeting was not convened. I see no reason why reason they did not respond to his and the PSU’s requests. Their stance was unfair, unlawful (being contrary to the basic dictates of natural justice) and constituted a procedurally improper response.”
On the third point of her deliberations, Justice Henry dismissed that “limb of [the PSU’s] claim” due to a technicality. “In framing this allegation, the PSU made itself the subject of the determination sought. They made no application to amend the pleadings. There is no evidential or legal basis on which to find that the [PSU] was forced to go on compulsory leave.”
On the remaining substantive issues Madame Justice Henry declared that former PS Pompey was within his rights to order Whyte on vacation leave. “However, his decision to transfer Mr. Whyte was arrived at in a procedurally improper manner and is quashed. 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. Finally, the decision by the CPO and the PSC not to afford Mr. Whyte an opportunity to be heard on the decision to transfer him … was unjust, unfair, unlawful and arrived at in a procedurally improper manner. The matter is remitted to the PS for determination in accordance with the law.” The Court ordered that the PSC pay to the PSU costs to be assessed if not agreed.
Elroy Boucher, the PSU boss, described the judgment as an important benchmark in the evolving relationship between the government’s human resource managers – the Public Service Commission, Permanent Secretaries and the Chief Personnel Officer – and members of the service. “This judgment is important because it sends a message to the Commission and to the Permanent Secretaries: transfers must be used for what it was intended and the purpose is to give public servants an opportunity to become a rounded public servant. Or, if you have a specific skill by moving them to an area of the public service where that skill could better serve; that is the intention, to better the service. Not to satisfy their own vendettas against public servants.”
Barrister Shirlan Barnwell, one of the lawyers for the claimant, told ANN, “for decades transfers have been a very troubling concern for many public workers. Workers affected often lament that their transfer was used as punishment because of something said or done. The thing is while a public service worker is liable to transfer; it has to be done within the confines of the law. But highhanded government officials simply ignore the law with impunity.
“Transfers cannot be used as a punishment or disciplinary measure. The law does not allow it. The trouble is not many workers know their rights and so many of these transfers that are illegal are enforced by government officials to workers’ dissatisfaction. In essence, illegal acts are rubber stamped and or initiated by the Public Service Commission and Ministers.
“When this happens workers’ rights and the rule of law are deliberately ignored. High-handed bullying must be eliminated; it damages employee morale and undermines worker productivity. When we allow wrong to go on without challenge, we end up with only losers all around.
“The Unions must continue to champion workers’ rights. And without hesitation seek the Court’s assistance to get justice for workers.”