Public Service Union to file additional unfair promotion cases in the High Court

The Public Service Union (PSU) intends to bring further legal action against the Public Service Commission (PSC), following the High Court’s recent ruling that the commission failed to be fair, transparent and objective in the promotion of some public service officers.

Elroy Boucher, the president of the PSU told SEARCHLIGHT that the union is satisfied with the judgment on the matter and that it will help to “open the door for us to take further legal action”.

“We are quite pleased with the ruling as it regards the unlawful practices of the Commission,” Boucher said. “You have secret promotions being made — like December/January time — there is a list of promotions that are supposed to be out. People don’t know about this until they hear that they’ve been promoted, and so this system, the way it is set up, the way it is being practiced, according to the judgment, it is contrary to law and it begs the question whether several promotions have been illegal.”

He made reference to a seniority list, a performance and appraisal system and confidential reports on public service officers; things he said do not exist but are critical when it comes to making decisions of promotion.

In the case in question, the Union claimed that the PSC failed to adhere to specific regulations related to the process of promotion of public servants.

Five public servants: Agnes Llewellyn, Kejo Peters, Joel Poyer, Conroy Daniel and Elroy Boucher testified on behalf of the PSU, sharing their experiences of being overlooked for promotions throughout their tenure in the civil service while in some cases, other less qualified officers were promoted.

The regulations highlighted were 18,19, 20 and 27; where 18 deals with the advertisement of vacancies in the service, 19 addresses the principles of selection for promotion, 20 refers to maintaining an up-to-date seniority list and 27 makes provisions for permanent secretaries and heads of departments to submit yearly confidential reports on officers within respective ministries.
And in a judgment delivered on December 19, 2018, Justice Esco Henry declared that the Commission failed to comply with the Regulations in respect of the promotion of the five officers.

Justice Henry also declared that the PSC failed to observe principles of fairness, transparency and objectivity in exercising its functions under Regulation 19 with regard to promotions for which Llewellyn, Boucher, Poyer, Peters and Daniel were eligible.

The PSC was ordered to “establish and implement forthwith and maintain an efficient, transparent and effective performance appraisal and promotion regime within the public service (including a robust and functional monitoring and corrective mechanisms) in accordance with the stipulations in Regulations 18, 19, 20 and 27of the Public Service Regulations”.

The PSU was also awarded costs, where the Commission is to pay the costs incurred by the Union in pursuing the case. This cost is to be assessed and an application is to be filed and served on or before January 31.

According to the judgment published on eccourts.org, the PSC in its defence, failed to provide crucial documentation of the case in the form of annual reports on public servants and the seniority list.

The judgment highlighted that the PSC was ordered to disclose annual reports for the five named officers in the matter but it did not.

“Without that annual reporting system or similar performance appraisal system, there is no certainty. Irregularities and even excesses and illegality can creep in. A reporting system which is based on oral transmission of information, wholly reliant on human recall and memory is equally untrustworthy, flawed and inconsistent with the letter and spirit of the regulation. The absence of the written annual report necessarily impinges on the PSC’s ability to competently and effectively assess the candidates’ merit and ability,” Henry said in her judgement.

During cross examination, chairman of the PSC, Cecil ‘Blazer’ Williams acknowledged that public officers may be promoted across departments within the civil service.

He further accepted that the commission must therefore know which officers are most senior within the service so as to facilitate the promotion process.

Although Williams, who is a lawyer, said that he understood the duty of disclosure, the PSC did not produce a seniority list in accordance with Regulation 19 and disclose them as ordered to the court.
As such, the judgment noted that in the absence of such list containing all the names of public officers in the civil service, there was inadequate evidence for the court to determine whether the PSC complied with its statutory duty to maintain a seniority list in accordance with the respective regulation.

The Public Service Union was represented by counsel Joseph Delves, while Attorney General Jaundy Martin, Duane Daniel and Shernell Hadaway appeared for the Public Service Commission.

Boucher told SEARCHLIGHT that the union intends to hold a press conference in the near future to speak at length on the matter.