Public sector employment issues

I smell elections in the air. Legislation tabled to repeal the Public Accounts Committee Act (and replace it with nothing), reduction in fees that professionals have to pay to work (by half, mind you), politicians increasing their own salaries without regard for public backlash and appointments like peas in the Public Service.

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, Supreme Court 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 the Civil Service, purported to second (temporarily transfer) him from his substantive post to another arguably lesser post in the Public Service.

The Public Service Commission was sued as the body having authority under the constitutional provisions cited above and the Attorney General, as always, who 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 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 victimization of public servants and to “avoid transfer being used as a penalty”.

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 . . .”

If you want your employment situation in the Public Service sorted out, then now is the time.

(Alicia Archer is an attorney-at-law in private practice)

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