Court ruling was a ‘Red Sea-style judgement’ — Otto Sam

Otto Sam, the public servant who the court has ordered the government to pay all monies he would have earned had he not be fired in 2013, has described the court ruling as a “Red Sea-style judgement” that has destroyed his enemies.

“I call it a Red Sea-style judgement where all the Egyptians that were evil and manifested evil, all perished. God allowed them to perish in the Red Sea. So, they have no grounds [for appeal]. But this is the state; but we have God with us,” Sam told iWitness News on Sunday.

His comments came in response to a question regarding whether he thinks the Ralph Gonsalves government will appeal the court’s decision.

The Gonsalves government had appealed a 2014 High Court ruling that the transfer of Sam, a career educator, from head teacher at the South Rivers Methodist School to the National Emergency Management Organisation (NEMO) in 2010 was “was “irrational and illegal”. However, the High Court in September 2014 dismissed the government’s appeal.

In the most recent judgement, handed down on Oct. 20, High Court judge, Esco Henry ordered Attorney General Judith Jones-Morgan to ensure that Sam receives full pay from the time he was suspended in 2012 from the Public Service, with all benefits and full pension.

The judge ruled that the decision of the Public Service Appeal Board (PSAB) to dismiss Sam was:

1. illogical, unreasonable and unlawful;
2. arrived at in an unfair and procedurally improper manner; and
3. disproportionate to the alleged wrong.

Justice Henry further declared that Sam was “unfairly and wrongfully dismissed by the PSAB.

‘tainted by bias’

The judge ruled that the PSAB’s decision was flawed by reason that it was tainted by bias. She further said that Godfred Pompey, permanent secretary in the Ministry of National Security, under which NEMO falls, had no authority to initiate charges against Sam — as Sam’s substantive position fell under the Ministry of Education.

The court further ruled that Sam was unfairly denied an opportunity to be heard on the matter of interdiction and that the charge was defective.

The charge that the Public Service brought against Sam was “otherwise procedurally defective and unfair, irrational and unlawful,” the judge further ruled, adding that the PSAB’s decision to dismiss Sam “was null, void, of no effect and is hereby quashed”.

Sam was also awarded cost and damages, both of which will be assessed in due course.

The judge also ruled that Sam is entitled to receive the portion of his salary that the government deducted during his interdiction between Aug. 7, 2012 and May 15, 2013.

He is also entitled to benefits that accrued to him and which are due and payable to him in his capacity as head teacher and benefits from the date of his dismissal on May 15, 2013, including his pension and gratuity.

He is also entitled to recover damages for unfair or wrongful dismissal and interest on the said sums at the statutory rate of 6 per cent per annum from the date of the judgment until payment.

Still entitled to be head teacher

Justice Henry further said that Sam never ceased to be entitled to hold the office of head teacher in the Ministry of Education and he is and has remained so entitled. The judge, however, did not order that be reinstated to that position.

The case sprung from the Public Service Commission’s (PSC) 2013 decision to fire Sam after a tribunal, in a two-to-one verdict, found Sam guilty of breaking Public Service rules when he wrote a letter in two local newspapers one year earlier.

The letter spoke about the situation at NEMO, to which Sam was transferred in 2010 from the South Rivers Methodist School.

Sam was transferred to NEMO sometime after complaining to the Ministry of Education that Prime Minister Ralph Gonsalves had not first reported to the principal’s office when he visited the school, as is the protocol established by the ministry for all visitors to public schools.

Gonsalves is parliamentary representative for North Windward, where South Rivers is located.

The PSAB upheld the tribunal’s decision to dismiss Sam, and the aggrieved public servant and the Teachers’ Union went to court.

Tribunal ‘misdirected themselves’

In siding with Sam, the judge, referring to the newspaper article that Sam wrote while at NEMO, said:

“… in view of the substantive evaluation conducted in relation to the content of the impugned article and the requirements of the common law duty of loyalty, I am satisfied that the charge as formulated had an inadequate legal or factual basis.”

The judge said that in this regard, “a fundamental mistake was made as to the type of information which would attract the protection of the common law duty of loyalty: namely confidential information.”

He said that the tribunal did not appreciate this and “misdirected themselves on this factual issue through no fault of Mr. Sam”.

“The circumstances of this case do not support a factual or legal finding that Mr. Sam’s words and actions displayed a lack of loyalty to the Government of Saint Vincent and the Grenadines, transcended the boundaries of responsible expression and constituted flagrant misconduct which contravened the terms and conditions of his appointment and employment. There is also no legal or factual basis for accepting that his conduct fell short of the standard expected of an officer and was improper. I find therefore that the evidence did not support the decision,” Esco ruled.

“I am satisfied that the surrounding circumstances have demonstrated an embarrassing lack of knowledge of fundamental administrative procedures applicable to disciplinary hearings within the civil service among several functionaries. This has implications for all civil servants and highlighted issues which must be addressed urgently by the relevant authorities. It is partly for this reason why I consider it just and appropriate to grant the declarations sought.”

Always confident of victory

Sam told iWitness News on Sunday that he and his legal team was confident that the court would rule in their favour.

“We expected to have won this case. All the charges were trumped up kangaroo-style. The charges, from day one, the person who did the charges should not have done the charges; nothing wrong was done by me in anyway. And it (the court) has ruled that. The letter spoke to public interest issues and even if you had gotten them in confidence, it did not matter,” Sam said.

The tribunal was chaired by then Assistant Director of Public Prosecutions, Colin John.

John, who exited the police force as a sergeant when he was transferred to the National Prosecution Services after completing a law degree, was this year appointed acting Deputy Commissioner of Police.

The other members of the tribunal were Cecily Saunders, a retired public servant, and Aldric Williams, a retired superintendent of police.

After the tribunal’s ruling, Saunders went public saying that she did not think that Sam was guilty of breaking the Public Service Rules, as alleged.

Sam appealed to the Public Service Appeal Board, which upheld the tribunal’s ruling.

Sam noted the composition of the appeal’s board, telling iWitness News:

“When we look at the composition of the tribunal and the DPP’s assistant being the chairperson and happened to be the only person on the tribunal who said that all the charges were made out, although he virtually invented and modified the charge, throwing in that common law duty was breached, and when you note that the office of the Director of Public Prosecution was the one involved in assisting in framing the charges and his deputy was now placed as chairman, you know that was kangaroo stuff. And that couldn’t stand before the court.”

Sam said victory was a must.

“We were always going to win and God is on our side and has been and will continue to be.”

He told iWitness News that the thinks that the government ought to do “the honourable thing” and honour the court’s decision.

“We will wait and see what happens, but we will go along with what the judge has ordered,” Sam said, telling iWitness News that he no longer has any interest in classroom activities.

“All these things have become blessings in disguise… If the state wants to place you, then the state will place you but if the state doesn’t place you, I don’t have a problem with that… I never ceased from holding the post, according to the judgement,” he said.

He said that since being dismissed from the public service, he has been more involved in the church and looks forward to doing that.

He has also been involved in some small-scale farming, but said the earnings are “nothing to really keep you economically or financially, but we give God thanks because it saves lives.

“And we look forward to the state honouring the court’s order — maybe a year from now, maybe five years from now, maybe three months. Whatever it takes.”

He, however, noted that the government has appealed in the court decision in the matter in which he challenged his transfer to NEMO, but said the current case is “even easier and clearer.

“And we won on every ground… They really don’t have any legal legs to go on,” Sam said.

He thanked counsels in the case, Jomo Thomas — who was appointed a government senator and later Speaker of the House of Assembly after filing the case, and Shirlan “Zita” Barnwell, also of Jomo Thomas Chambers, who was last year appointed an opposition senator, as well as Grenadian counsel, Ruggles Fergusson.

Sam also thanked the Teachers Union and the Teachers Credit Union, who he said have been patient.

He said it family “stuck it out”.

“We never had any arguments about it. We never had any fights. We were satisfied and I give God thanks for them,” he said, adding that his church and sisters were supportive.

He also thanked the Vincentian community, “including those who have been praying and speaking out against that type of injustice”.