The Supreme Court has declared unlawful, the automatic dismissal of public workers on the basis of criminal convictions as it ruled on Monday in two separate decisions with wide-ranging implications for employment relations in Government.
On Monday, Madame Justice Shona Griffith delivered landmark judgments in cases brought by Wilbert Lynch v the Chief Personnel Officer, the Public Service Commission and the Attorney General and Kenrick Carmichael v. the Attorney General et al, which now place tremendous scrutiny on the way disciplinary proceedings are conducted.
The state has also been ordered to compensate the complainants for the many years they were banished from the public service because of their arbitrary dismissals, thereby setting a groundbreaking precedent for those charged with overseeing operations in the public service.
“For too long, a perfunctory process, where you get a letter saying that you have ‘gone through the eddoes’ was the way in which they operated and what the court has determined is that the doctrine of natural justice and the principles of fairness require you to be able to answer a charge against you,” declared Gregory Nicholls, the Attorney-at-Law for Lynch.
“No man should be charged in absentia. So that this ruling is a landmark ruling. It not only helps persons who may have been convicted in our court system for criminal offences, but it also reinforces the broader public law principles regarding the determination of your employment, and how it impacts you and your family,” the well-known attorney added.
The legal victory for Nicholls is, however, “bitter-sweet” as he revealed that his client had passed away late last year after waiting almost a year for the conclusion of the matter.
Back in April 2010, the former temporary government security guard in the Ministry of Security and Defence was found guilty of stealing an item from a shop worth approximately $11. Lynch was convicted, reprimanded and discharged and informed by the magistrate that no conviction would be recorded against him. He also paid costs of $350 as ordered by the court.
Sixteen months later, without prior notice, Lynch was informed by letter from the Chief Personnel Officer that the Governor General had accepted advice from the Public Service Commission to dismiss him from the public service. According to his affidavit, he was not charged pursuant to the provisions prescribed in the Code of Discipline for misconduct of a serious nature and no formal complaint adjudicated.
Lynch therefore claimed that his removal from office was inconsistent with the process prescribed in the Code of Discipline in the Public Service for misconduct of a serious nature. He also contended that the process of appeal to the Governor General’s Privy Council was “arbitrary” and conducted in breach of the principles of natural justice and procedural fairness when he was denied any opportunity to answer the case brought against him.
Meanwhile, Carmichael was found guilty of breaching a protection order, but because of certain “ostensible mitigating circumstances,” the magistrate ordered that no conviction would be recorded. Much like Lynch, Carmichael, who was represented by Hall Gollop Q.C. in association with Saffron Griffith, was removed from his position as a prison officer in 2016 without being afforded the right to a fair hearing.
Carmichael claimed that the manner in which he was dismissed constituted a “serious breach” of his right to a fair hearing under Section 18 of the Constitution of Barbados and that he was the victim of a “flagrant breach” of his rights to natural justice.
Delivering consecutive judgements earlier this week, Justice Griffith ruled in favour of the plaintiffs and quashed the decisions to dismiss the two officers five years ago in the case of Carmichael and nearly 10 years ago, in the case of Lynch. The state was therefore ordered to pay them damages that would at least cover their wages from the period of termination up to the date of the judgement and for Lynch, up until the date of his passing. This was done with the view of placing them in as good a position as they would have been if they had not been sent home.
Describing the decision as one of the most “erudite” judgements handed down in his 21-year legal career, Nicholls declared that it not only examined the issue of whether the men ought to have been dismissed because of their convictions but thoroughly assessed the lawfulness of the process for dismissal from the public service.
“Up to now he has never seen the documentary evidence that was put before the [Public] Service Commission, that was put before the Governor-General and when he appealed to the local privy council, his appeal was heard and determined and he wasn’t present,” Nicholls lamented.
“He made no representations orally, in writing, he didn’t get a chance to send a trade union representative, or lawyer or friend or someone to say something on his behalf. He got a letter saying that the Governor-General has considered the matter and will accept the advice of the service commission and he was fired. This process has now been overhauled and it should be buried with full military honours,” the attorney declared.
Nicholls also slammed officials from the public service for dragging their feet, in some cases deliberately, to the extent that his client died late last year after “suffering” through the 10-year period it took for the case to be completed. Making it more “bitter sweet” was the fact that he met Lynch while campaigning as a candidate in the 2013 General Election.
“When I look back at my notes…, we attended court on about no less than 17 occasions before a trial in this matter started last year,” he said.
“It has been a torturous process and when I got the news that my client passed away one month after he gave his evidence in this matter, it was tragic, because I felt like he missed out on that opportunity to be there yesterday when he was vindicated for bringing this case.
“It is really unfortunate because justice cannot be given to people in the grave and that is what this has done… and that is far too long a period of time to bring a case,” he added.
Gollop meanwhile told Barbados TODAY that the outcome of the matters now places very careful scrutiny on the way public sector hearings are conducted.
“It also makes a very significant statement on the application of natural justice to all of these inquiries and trials in the public service on matters of discipline,” the Queen’s Counsel added.