Cheyra Bell v The Attorney General
| Jurisdiction | Bermuda |
| Judge | Hargun CJ |
| Judgment Date | 03 June 2021 |
| Docket Number | CIVIL JURISDICTION |
| Court | Supreme Court (Bermuda) |
[2021] SC (Bda) 43 Civ
In The Supreme Court of Bermuda
Hon. Chief Justice Hargun
CIVIL JURISDICTION
2019: No. 320
Mr. Dantae Williams, Marshall Diel & Myers Limited, for the Applicant
Ms. Lauren Sadler-Best, Attorney-General's Chambers, for the 1 st–3 rd Respondents
Mr. Richard Horseman, Wakefield Quin Limited, for the Public Service Commission
Judicial review of the decision of the Head of Public Service (“HOPS”) to summarily dismiss a Residential Care Officer for gross misconduct; scope of duty of fairness at the investigation stage and at the hearing before the HOPS; the right to an oral hearing and the right to cross-examine witnesses; whether it is open to the applicant to raise procedural irregularities as grounds for judicial review when those issues were not raised before the HOPS or in the appeal proceedings before the Public Service Commission (“PSC”); relevance of the statutory appeal to the PSC; whether a decision of the HOPS vitiated by apparent bias.
These judicial review proceedings relate to the decision of Derrick S. Binns, JP, Ph.D. ( Dr. Binns), Head of the Public Service (“ HOPS”) 1 dated 23 February 2019 whereby Dr. Binns held that Ms. Cheyra Bell (“ Ms. Bell” or “ the Applicant”), a Residential Care Officer (“ RCO”) at the Department of Child & Family Services (“ DCFS”) was guilty of gross misconduct on the ground that she was unfit for duty as a result of being under the influence of alcohol or drugs and that the appropriate penalty in all the circumstances was dismissal with immediate effect.
The Applicant seeks Orders of Certiorari quashing (i) the decision of the DCFS dated 16 November 2018 to refer the Applicant to the HOPS for gross misconduct; (ii) the decision of the HOPS dated the 23 February 2019 to summarily dismiss the Applicant for gross misconduct; and (iii) the decision of the Public Service Commission (“ PSC”) to refuse the Applicant's appeal. The applicant seeks a declaration that her employment has not terminated and continues until such time as she resigns or comes to an end by
some lawful means. The Applicant seeks payment of salary and benefits from 1 February 2019 to the date of judgmentThe facts relied upon by the Applicant are set out in the Notice of Application for Leave to apply for Judicial Review dated 12 August 2019. The Applicant was at all material times an employee in the Public Service and in 2014 was engaged as RCO within DCFS.
Following a Child Protection Referral sent to the DCFS on or about 15 June 2018, an investigation commenced in relation to the Applicant and her colleague Mr. Shayne Hollis (“ Mr. Hollis”), for being intoxicated while on shift. The allegations against the Applicant were considered to be offences of gross misconduct whilst the allegations against Mr. Hollis were considered to be the offence of simple misconduct.
The DCFS investigation team of Mr. Leon Smith and Ms. Maureen Trew (the “ Investigation Team”), reviewed the complaint against the Applicant. In doing so, the Investigation Team spoke with two child (adolescents) residents at the Youth Development Center (the “ YDC”), three RCOs and Mr. Hollis. The Interview Team compiled a report based on interviews from these witnesses. The Applicant complains that the Investigation Team did not request that the witnesses write their own statements in their own words. Additionally, the witnesses were not given an opportunity to review and verify the statements recorded by the Investigation Team. A summary of the conversation was prepared by the Investigation Team and sent to the Acting Director of the DCFS, Ms. Renee Brown (the “ Acting Director”). 2 The Investigation Team submitted a report dated 29 August 2018 (the “ Investigation Report”) to the Acting Director. The Acting Director provided the Applicant with a letter dated 1 October 2018 which sets out the basis of the allegation of gross misconduct and invited the Applicant, together with a trade union representative or a friend, to a meeting to discuss the allegations and present her side of the matter.
The Applicant met with the Acting Director and five others on 6 November 2018. Present at the meeting were Ms. Renee Brown, the Acting Director, Ms. Natasha Shabdeen, Human Resource Manager at the Department of Human Resources, Mrs. Monique Shannon, Supervisor, Mr. Kevin Grant, Assistant General Secretary of the Bermuda Public Services Union (“ BPSU”), Mrs. Linda Bogle-Mienzer, 2 nd Vice President of BPSU and Mr. Musceo Hunt, Shop Steward.
By letter dated 6 November 2018, the Acting Director referred the charge of gross misconduct to HOPS. The applicant complains that in referring the matter to the HOPS, the Acting Director did not recommend a penalty in respect of the charge, as required by section 7.4 of the Conditions of Employment and Code of Conduct (the “ Code of Conduct”).
On 12 February 2019, the Applicant appeared before the HOPS for a disciplinary hearing in respect of the charge of gross misconduct (the “Disciplinary Hearing”). Present at this hearing were Ms. Renee Brown, Ms. Natasha Shabdeen, Mr. Kevin Grant, Mrs. Linda Bogle-Mienzer, Mrs. Mellonie Furbert, Divisional Chair of the BPSU and Ms. Angela Todd, the Recording Secretary from the Cabinet Office.
At the Disciplinary Hearing, the Applicant complains that the HOPS did not call any witnesses and relied on the Investigation Report. The Applicant also complains that the HOPS did not request that the Director of DCFS, Mr. Maybury, who had returned to work by that date, attend the Disciplinary Hearing in accordance with the Public Service Commission Regulations 2001 (the “ PSC Regulations”). The Applicant was eventually dismissed by the decision of the HOPS dated 23 February 2019 (the “ Decision”)
The Applicant appealed the Decision to the PSC by submissions dated 6 March 2019. The Applicant's appeal was dismissed on 2 April 2019 after a review of the matter on the record. The PSC affirmed the summary dismissal of the Applicant.
The Applicant relies upon a number of grounds which are said to vitiate the decisions under consideration. The grounds can be conveniently considered under three phases: the first phase leading up to the meeting with the Acting Director on 6 November 2018; the second phase leading up to the Disciplinary Hearing on 12 February 2019 and the Decision itself on 23 February 2019; and the third phase comprising the appeal to the PSC.
In relation to the first phase the Applicant complains that:
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(a) The Acting Director did not obtain witness statements from each witness which were in their own words or confirmed the truth of their content. The result is, counsel for the Applicant submits, that the Acting Director's decision to refer the matter to HOPS turned on anonymous disputed hearsay evidence.
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(b) The Applicant was not given an opportunity to review the Investigation Report to confirm the summary contained therein was a true summary of her conversation with the Investigation Team prior to it being submitted. In doing so, counsel submits, the ultimate decision-maker accepted challenged evidence and suggested that the Applicant had reason to lie when these matters could have been adequately addressed if the Applicant wrote her own version of events or if she was given an opportunity to review the notes taken by the Investigation Team to determine if they were an accurate reflection of what she said.
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(c) The Applicant was not provided copies of the witness statements and was not provided the witness summaries.
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(d) The Applicant did not know the identity of the parties and witnesses and was unable to raise any favourable points in rebuttal and or adequately challenge the witness summaries. Further, the credibility of the witnesses could not be assessed against the credibility of Ms. Bell through viva voce evidence.
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(e) The DCFS did not provide a report to the HOPS with a recommendation as to the penalty for gross misconduct in accordance with paragraph 7.4 of the Code of Conduct which requires that “in cases of gross misconduct, the Head of the Department must send a report in writing to the Head of the Civil Service with the recommendation with respect to the penalty, which will be at the discretion of the Head of the Civil Service.”
In considering these complaints it is relevant to keep in mind that the procedure in relation to the investigation and the determination of allegations of gross misconduct by public officers is governed by the PSC Regulations.
Regulation 24 (2) provides that the procedure set out in the Second Schedule to the PSC Regulations shall be followed in the adjudication of a disciplinary offence involving gross misconduct.
In relation to the first phase of the process, the investigatory phase, the Second Schedule requires the following process and procedures to be followed:
“PROCEDURE FOR HANDLING CASES OF ALLEGED GROSS MISCONDUCT
1 The Head of Department shall prepare a written statement of the alleged offence and give a copy to the officer in question.
2 The Head of Department shall afford the officer the opportunity to meet him to discuss the allegation and present the officer's side of the matter. A representative of the Director and also, where appropriate, the officer's job supervisor shall be present at any such meeting. The officer may have a trade union representative or a friend present to assist him if he so wishes.
3 After the meeting referred to in paragraph 2, the Head of Department shall—
(a) determine whether the allegation should be dismissed. If he so decides, he shall...
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