Harkin v Commissioner of Police
| Jurisdiction | Bermuda |
| Judgment Date | 23 November 2015 |
| Neutral Citation | [2015] SC Bda 81 Civ |
| Date | 23 November 2015 |
| Docket Number | APPELLATE JURISDICTION 2013: CIVIL APPEAL NO: 250 |
| Court | Supreme Court (Bermuda) |
[2015] SC (Bda) 81 Civ
In The Supreme Court of Bermuda
APPELLATE JURISDICTION 2013: CIVIL APPEAL NO: 250
APPELLATE JURISDICTION 2015: CIVIL APPEAL NO: 238
In the Matter of Order 55 of the Rules of the Supreme Court
And in the Matter of an Appeal of a Decision of a Board of Inquiry Appointed Under the Human Rights Act Dated on or Aboat the 23 July 2013
In the Matter of Section 21 of the Human Rights Act, 1981
And in the Matter of Order 55 of the Rules of the Supreme Court
Mr Richard Horseman, Wakefield Quin Limited, for the Commissioner (‘the Respondent’)
Mr Allan Doughty, Beesmont Law Limited, for Mr Harkin (‘the Applicant’)
(in Court)
The Applicant was employed with the Bermuda Police Service (‘BPS’) on a 5 year work permit which commenced on February 27, 2005. He filed a Complaint dated December 12, 2009 against the Respondent under the Human Rights Act 1981 (‘the Act’). It alleged that the Respondent had discriminated against him in breach of section 2(2)(a) of the Act on the grounds of his race, place of origin or ancestry. The particulars were that the Applicant had qualified for promotion from the rank of constable to the rank of sergeant and the Respondent had deferred his promotion until it was clarified that the Applicant would obtain a new work permit after his then permit expired on February 27, 2010. When the Applicant filed a grievance about not being promoted at the same time as other officers who had also passed the qualifying exams and alleging a breach of his rights under the Act, the Respondent replied advising the Applicant that his employment would not be extended. In this respect, a breach of section 8(a) of the Act was alleged.
The Complaint was referred to a Board of Inquiry (Mr Paul King, Chairman, Ms Keren Lomas and Ms Pamela Fowkes) (‘the Board’). The Board decided that the Applicant had been discriminated against, in a Decision dated July 23, 2013 (‘the Liability Decision’). By Notice of Originating Motion dated August 6, 2013, the Respondent appealed to this Court against the Liability Decision. The Board assessed the compensation due to the Applicant in a decision dated May 11, 2015 (‘the Quantum Decision’). By Notice of Originating Motion dated June 1, 2015, the Applicant appealed to this Court against the Quantum Decision.
The Board firstly summarised the Applicant's case. By letter dated July 29, 2009, the Promotions Board formally recommended him for promotion and advised him that he had ranked fourth out of eight candidates. On August 14, 2009 when eight other constables were promoted, the Applicant was told he could not be considered for promotion unless or until his work permit was renewed. He considered this treatment to be discriminatory on place of origin grounds. On October 16, 2009 he requested the Respondent (then Commissioner George Jackson) to renew his permit and on the same date filed a grievance with a Mr Michael Trott of the Human Resources Department complaining of discriminatory treatment. By letter dated November 30, 2009, the Respondent notified the Applicant that his employment would terminate on expiry of his contract, in part because the Applicant felt he had been discriminated against. After this, he was demoted from his Authorized Firearms Officer post and assigned to the Magistrates' Court. the Board quotes a reference provided by an Inspector of the BPS upon which the Applicant relied:
‘ I highly recommend without reservations PC Harkin is a solid individual who takes pride in his policing duties and was a vital member of the Bermuda Police Armed Response Vehicle Program.’
The Board accepted that the Applicant was less than a flawless performer, but rejected as irrelevant minor performance complaints identified by the Respondent in the course of the proceedings before the Board but never relied upon as a ground for not continuing the Applicant's employment at the material time. The Board then proceeded to summarise the Respondent's case. This was primarily (a) that the expiring contract of the Applicant was a permissible reason for differential treatment, and (b) the fact that two other non-Bermudians were promoted was inconsistent with the Applicant being discriminated against on place of origin grounds. On the retaliation to the filing of the Human Rights Act complaint limb of the case, the Respondent relied on the fact that notice of a formal complaint was only received when the complaint was filed on December 15, 2015. This was after the termination of employment decision had already been made. A further technical point was raised as to whether the Respondent was the correct party, both in principle and because the office holder had changed since the material time for the purposes of the complaint.
The Board dealt firstly with the identity of the Respondent issue by citing section 31 of the Act, which provides that the Act applies to ‘ an act done on behalf of the Crown by a statutory body, or a person holding a statutory office’ (section 31(1)(b)). The Board accepted the submission of the Applicant that the Respondent, as the statutory office holder charged with the administration of the BPS by section 3 of the Police Act 1974, was the appropriate respondent to the Applicant's Complaint. The Board concluded:
‘48… We are further satisfied that it is the person holding that statutory office at the time the complaint comes before the Board of Inquiry that is the correct Respondent because otherwise the Complainant would be without a remedy in the event that a predecessor made the employment decision in question.
49. We accept the Complainant's submission. We are further reinforced in our finding by the fact that the contract between the Complainant and the Respondent was actually made between the COP and the Complainant …’
On the central discrimination issue, the Board found as follows:
‘ 59. The Respondent further contended that the Complainant had a fixed term contract which expired February 2013 which meant that a new work permit would have to be granted before the Complainant's promotion could be offered. And since Section 6(9A) provides that nothing under Section 6 confers upon any person any right to employment, once the contract had expired the Complainant would not have been entitled to continue employment.
60. We do not accept this contention as it was clear…that no advertisement need to be placed in the press to protect the rights of Bermudians when such contracts were sought to be renewed, and that 5 year contracts were regularly being renewed for a further 5 year term. The COP would have been better advised to tell the Complainant he had earned promotion subject to the renewal of his work permit….
63. We do not accept the argument that the promotion of 20 British officers, 18 of whom were white like the Complainant, detracts from the complaint that the Complainant himself was discriminated within the provisions of Section 2(2) and section 6(1)(f) and (g) of the HRA…
66. the Complainant referred us to the Canadian case of Ontario Human Rights Commission and Theresa O'Malley (Vincent) v Simpson-Sears Limited [1985] 2 SCR 536 to illustrate that it is immaterial whether the employer intended, or did not intend, to discriminate…
68 In cross-examination the Respondent admitted that the deferral of the Complainant's promotion was outside the BPS (GP) guidelines for the Promotion Process (PP) for Police Officers (PO) to which we were referred. The Respondent in cross-examination acknowledges that the Complainant was eligible for promotion under those guidelines…
70….The Respondent told us his discretion not to promote is not limited to the type of examples set in Paragraph 9.2. We cannot determine that here; his discretion must be exercised reasonably and whether he did so will have to be decided on a case by case basis….it is clear the Respondent could have made an application for renewal of the Complainant's contract at any time after the Complainant's ranking was known.’
The Board made the following key findings on the retaliation aspect of the Complaint:
‘ 82. We accept from the evidence that the Complainant disclosed to…the HR Manager, that he had consulted the Human Rights Commission…
83. In these circumstances we have no difficulty in finding that on 30 th November 2009 Commissioner Jackson terminated the Complainant's contract to penalize the Complainant for lodging his grievance alleging discrimination, and that the transfer on 7 th December 2009 to a less well paid position was similarly motivated…
85….Was the Complainant's disclosure to the HR Manager “in a proceeding under the Act” or does the signed complaint itself initiate a proceeding under the Act?
86. The parties' counsel did not assist us with this narrow issue but we have resolved it in favour of the Complainant because on a the reading of Section 14H(1) a complaint to the Commission may be made orally, electronically or in writing….
87. Consequently it appears to us that a proceeding under this Act commenced when the Complainant consulted the Human Rights Commission and gave the Commission all of the facts.’
The Respondent challenged all of these findings on appeal. Although, as I indicated in the course of the hearing, the proper respondent point seemed on its face to be wholly unarguable, the more substantive grounds of appeal merited close analysis. Nevertheless, in summary, the Respondent complained that:
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(1) the proper respondent was the Attorney-General or the appropriate Minister under the Crown Proceedings Act 1966. The Respondent's office was not amenable to suit for the acts of other Police...
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