So the Alexandra saga continues with a number of persons, including the principal, being “separated” from that institution. It has been reported that letters have been delivered indicating that as of the commencement of the second term of the school year they will be reassigned to other institutions. None of the reports have indicated by whom those letters were signed.
Section 18 of the Public Service Act, 2007 (as amended) provides that “Appointments to established offices in the Public Service shall be made in accordance with (a) the provisions of Part 2 of Chapter VIII of the Constitution; and (b) the Recruitment and Employment Code. Section 19 goes on to provide that “An appointment on transfer in respect of the holder of a public office (a) referred to in Part 2 Chapter VIII of the Constitution, shall be made in accordance with the provisions of that part.
When reference is made to the Constitution, section 94 states that “Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices is hereby vested in the Governor General, acting in accordance with the advice of the Public Service Commission”.
In the case of Charles Brathwaite v Chief Personnel Officer, Public Service Commission & AG, S/Ct Suit No. 687 of 2007 (unreported) the claimant brought an action against the mentioned defendants when the Chief Personnel Officer in her capacity as head of the Personnel Administration Division of the Ministry of Labour and the Civil Service purported to second (temporarily transfer) him from his substantive post to another arguably lesser post in the civil service.
The commission was sued as the body having authority under the constitutional provisions cited above and the Attorney General as always must be sued as the representative of the Crown in its rights of government as dictated by the provisions of the Crown Proceedings Act Cap. 197.
The court in Brathwaite’s case found that there being no evidence that the authority of the Governor General pursuant to section 94 of the Constitution had been “delegated under section 95 of the Constitution or section 47 of the Interpretation Act by virtue of the of the Constitution (Delegation of Functions — Public and Police Services) (Miscellaneous Provisions) Order, 1974 to the Chief Personnel Officer,” the Chief Personnel Officer acted ultra vires (outside the scope of) her authority and could not transfer or second the claimant.
By way of background to the relevant provisions, the court in its judgment explained that one of the most important reasons for the provisions in Barbados’ and other Westminster style constitutions was to avoid victimisation of public servants and to “avoid transfer being used as a penalty”.
After the sideshow that was the Commission of Enquiry, one can be left with the opinion that the transfer of the Alexandra principal has such a motive.
Counsel for the principal has indicated that the matter is at this point an industrial relations dispute. The Public Service Act also outlines a grievance handling procedure in its Fourth Schedule which provides for the following chain of recourse
1) the immediate supervisor;
2) the Permanent Secretary of the relevant ministry;
3) the Permanent Secretary of the Ministry of the Civil Service or the Chief Personnel Officer;
4) the Head of the Public Service and;
5) then, if all else fails the representative trade union of the aggrieved employee/public officer may declare that a dispute exists. This procedure relates as set out in section 12 to “any action or decision of:
(a) a person appointed by the commission who has or who had supervisory powers over that person; or
(b) a person other than a person referred to in paragraph (a) who has supervisory powers in respect of the employment of that person…”
Litigation will be the inevitable result but I hope for the sake of the public coffers that the letters were issued under the hand of the Governor General and not some lesser authority of the Ministry of Education or the Civil Service since the latter would contravene the constitutional provisions and lead the court to issue an order of certiorari, quashing the decision to transfer and back to St. Peter we would go.
I wish you great blessings, prosperity and peace for 2013 and beyond.