The Public Service Union (PSU) has persuaded the High Court to restrain the government from transferring a Union Island man from his job on that southern Grenadine island to an unspecified post in Kingstown.
The hearing of the substantive matter has been slated for July 30.
The PSU’s lawyers successfully argued that transferring Jamali Whyte, a junior clerk at the Revenue Office in Union Island, to a post at the Maritime Department, in Kingstown, would have an adverse effect on his family life and finances.
In a July 5 decision, the court granted an interim injunction to restrain the respondents from transferring or re-assigning Whyte.
It has also granted Whyte’s union, the PSU, leave to apply for judicial review of the decision by Permanent Secretary in the Ministry of National Security, Godfred Pompey, to transfer or re-assign him.
Potentially ‘financially embarrassing position’
Whyte said a transfer to the mainland would mean being away from his partner and son for extended periods because there is no daily ferry service between Union Island and St. Vincent.
He further pointed out that the cost of daily air travel (of EC$270 return) to and from work would be prohibitive and not sustainable on his monthly salary of EC$1,896.
Whyte further told the court that he spends EC$1,889 in household, medical, tax and miscellaneous expenses and that relocation would be so disruptive that no amount of money would remedy its effects on his family life.
Jomo Thomas and Shirlan Barnwell are representing the PSU.
Karen Duncan and Duane Daniel appear on behalf of the respondents, the rest of which are the Chief Personnel Officer (CPO) and the Public Service Commission (PSC).
Daniel indicated that Civil Service Orders provide for the payment of a monthly hard area allowance of between EC$150 and EC$200 to officers stationed in areas designated as such.
However, the lawyer was unable to tell the court if Whyte would qualify for such allowance on being transferred or re-assigned to the mainland and made no submissions on the issue of adequacy of damages.
He acknowledged that Whyte would not be entitled to an increase in payments by virtue of such transfer or re-assignment.
In her ruling, High Court judge Justice Esco L. Henry said:
“It appears to me that whereas Mr. Whyte might find himself in a financially embarrassing position if he is transferred or re-assigned as contemplated, the PS, CPO and PSC are unlikely to apprehend such financial prejudice if the interim injunction is granted. They have not provided any testimony to contradict Mr. Whyte or to support an assertion that they would be so prejudiced.
In giving the reasons for her decision, Justice Henry said that if the PSU’s application for an interim injunction were dismissed, Whyte would have been required to report to the mainland for duty, with effect from June 28, 2018.
“He would either have to find rented accommodation, seek paid or unpaid room and board with someone on the mainland or travel to Saint Vincent from Union Island each day. He would leave his partner and son to carry on their lives without his daily involvement. Such move would undoubtedly have cost implications for him and his family,” the judge said.
She further noted that if the interim injunction were granted, Whyte would continue his life on Union Island and the Government would, of necessity, need to fill the unspecified post at the Maritime Administrative Office in the Ministry of Security, Kingstown with another officer or leave it vacant until the substantive application is determined.
“It is not clear if the post is vacant or whether it was anticipated that the present serving officer would be re-assigned elsewhere before Mr. Whyte assumed duties,” the judge said.
She further reasoned: “The State is generally perceived to possess considerably more resources than the average citizen and therefore better able to absorb financial, personnel and other exogenous and endogenous shocks. This case is no exception. It appears that the balance of convenience swings in Mr. Whyte’s and the PSU’s favour; and that the status quo should remain the same, pending further order.”
Sent on vacation
The matter arose after Whyte was verbally notified by and then formally advised by an April 25, 2018 letter from Pompey that he was to proceed on eight days’ vacation leave and thereafter report for duty at the Maritime Department, in Kingstown, with effect from May 8, 2018.
Whyte had not applied for vacation leave or a transfer and wrote to the PSC indicating that he had not been given a reason for the decision to transfer him.
The PSU wrote to the CPO requesting a meeting to address the matter and the union wrote to the PSC’s chairman regarding the decision.
However, neither Whyte nor the PSU has received any response to the letters.
Whyte complained that he did not know what considerations Pompey applied to the decision to transfer or re-assign him, adding that Pompey’s decision seemed arbitrary.
He also averred that he was not given a hearing and that he views the decision as a punishment for some wrong he has not committed.
He explained that based on the expenses associated with travel between the two islands, such a move would negatively impact him financially.
On June 6, the PSU filed an application for leave to apply for judicial review of Pompey’s decision to transfer or re-assign Whyte.
The union also applied for an interim injunction restraining Pompey, the CPO and the PSC from transferring or re-assigning Whyte from the Revenue Office Union Island to the Maritime Department or to any location on mainland St. Vincent until final determination or further order.
Pompey acted ‘unlawfully’ — union
The union is alleging that Pompey acted unlawfully and that the decision was made without assigning reasons.
The PSU claimed that the Pompey failed to take into account relevant factors and that the decision was therefore unreasonable.
Pompey, CPO, and PSC opposed the application for leave and for the interim injunction.
They contended that Whyte did not follow the procedure prescribed in the CSO for writing to them and that this default translates to a failure by him to seek redress in the established manner.
The respondents further contended that the application for leave to apply for judicial review should be denied because Whyte had not availed himself of the available remedies.
They submitted that the letter purporting to shift Whyte within the service, speaks to re-assignment and not transfer and also contended that, for this reason, the application for injunctive relief should be dismissed.