Ahmed Caines v Public Service Commission

• Jurisdiction: Bermuda
• Judgment Date: 14 May 2008
• Docket Number: Appellate Jurisdiction 2006 No. 39
• Date: 14 May 2008
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Ground, CJ

Appellate Jurisdiction 2006 No. 39

BETWEEN:

Ahmed Troy Caines

Appellant

and

The Public Service Commission

The Department of Human Resources

Winfred Fostine-Desilva (Collector of Customs)

Minister of Finance

Respondents

Mr M Diel for the Appellant

Mr G Howard for the Respondents

Human rights appeal — Discrimination — Race and national origin — Proper parties to the appeal — Evidence of discrimination

JUDGMENT of Ground, CJ

Introduction

1. This is an appeal under section 21 of the Human Rights Act 1981 (“the Act”). The appeal is against the decision of a Board of Inquiry (“the Board”) appointed by the Minister under section 181 of the Act to hear a complaint of discrimination by the appellant against the respondents.

2. The appellant is a Customs Officer. In 2002 he held the rank of Senior Customs Officer, having been in the service since 1983. He, amongst others, applied for the job of Assistant Collector of Customs, when it was advertised internally. At that time Assistant Collector was not the next step up for him, the next post in the hierarchy being Principal Customs Officer. None of the applicants were appointed as a result of that recruitment round, a decision being taken to recruit overseas, and that was

notified to all the staff by a memorandum of 4 September 20022, which said inter alia—

‘None of the candidates were able to persuade the Panel that they had the prerequisite management, administrative and financial experience required to successfully carry out the duties of the post. The Panel recommended, and the Public Service Commission authorized, for the post to be advertised overseas and filled with a fully trained Customs manager on a three-year fixed term basis. During this period all officers currently holding management positions will be offered additional training to prepare them for the position and the post will be re-advertised’.

3. The appellant made his first complaint of discrimination under the Act to the Human Rights Commission (“the Commission”) on 8 January 2003. Subsequent to that, and as a result of the overseas recruitment exercise, a female Canadian Customs Officer, Mrs. Joan Crown, was appointed to the post with effect from 3 March 2003. According to the Board's decision, the appellant then made further complaints on 13 August 2003 and 3 October 2003, but these were apparently in the same terms, and the Board treated the last complaint as the one before it. In December 2002 a vacancy for the post of Principal Customs Officer was advertised, and the appellant also applied for that, but was not appointed. An attempt to expand the complaint by Further and Better Particulars of 18 April 2005 to include that was refused by the Board, although they let it in by the back door as an allegation of retaliation, and they considered and dealt with it on that basis.

4. The Board was appointed on 4^th January 2005, after a preliminary investigation by the staff of the Commission. The Board appears to have commenced its hearings on 15 September 2005, when it dealt with discovery and other procedural issues, and this continued on 16 September. The hearing then resumed on 10 October 2005. In the interim, on 30 September, the Governor had issued a certificate that all documents relating to the non-appointment of Mr. Caines were privileged and that their production would not be in the public interest. This was apparently in response to a subpoena served on the Secretary to the Commission on 29 September, and it is fairly clear from the evidence that it was the Commission which took the matter up with the Governor3.

5. The Governor's certificate was a matter for discussion when the hearing resumed on 10 October, and that continued on 12 October, when the Governor issued a further certificate, waiving privilege for those documents already disclosed and in the public domain, but extending it to include documents relating to the appointment of Mrs. Crown. This letter also identified the Governor's authority as reg. 4(1) of the Public Service Commission Regulations 20014, and stated that the public interest concerned was to ‘maintain the integrity of the functions of the Public Service Commission’.

6. The hearing proper finally got under way on 7 November 2005, with the evidence of the appellant. It then continued on 8 November, when the Board heard from the Collector of Customs, and 9 November, when there was evidence from the Secretary of the Public Service Commission, although she was restricted in what she could say by the Governor's certificate. The transcript ends there.

7. The decision of the Board was eventually delivered on 11 October 2006, nearly a year after the conclusion of the evidential hearing. There is no explanation for what, on the face of it, seems an unacceptable delay. Nor did the delays end there. The Notice of Appeal was issued on 3 November 2006, but it did not come on for hearing until 23 April 2008. I am told that the reason for this delay was that the Commission could not find the documents exhibited at the hearing, and that the record had to be recreated. Given that I was referred to almost none of those documents, that seems a rather pointless exercise, made worse by the fact that in July last year I gave directions for the record to be agreed within 21 days, and the matter to be set down for hearing. It is, of course, undesirable for matters such as this to drag on almost indefinitely, and it is the duty of all parties to ensure that they do not.

8. The Board gave a written judgment, and they concluded:

‘The Panel finds having considered the evidence before it that there was no retaliation against the Complainant for making his complaint to the Human Rights Commission when he was not offered the position of Principle Customs Officer.

The Panel after considering all of the evidence and listening to all the witnesses before it find as a fact that there has been no discrimination against the Complaint (sic). Having said that, clearly the way that promotions and the state of labor relations in the Customs Service were conducted at the time of the application of the Complainant for the position of Assistant Collector of Customs together with the errors in the advertising of the positions would and did contribute to this Complainant's belief that he was being discriminated against, but it is the finding of this Panel that it is a belief without the support of evidence.’

The Board, therefore, dismissed the complaint against all the respondents.

The law on discrimination

9. The complaints allege discrimination on the grounds of race and national origin. Discrimination is...