Equal Opportunity Tribunal chair to appeal ruling in Veera Bhajan lawsuit

THE EQUAL Opportunity Tribunal is defending its position not to pay public officers from the dates of their appointments but from the date they assume office, as it issued a statement on the outcome of the Veera Bhajan's lawsuit.

In a release, the tribunal said this position was in keeping with the traditional practice in many government departments.

“The tribunal has done nothing injudicious.”

The tribunal's statement – its second – comes two days after High Court judge Avason Quinlan-Williams ruled the tribunal and its chairman, Donna Prowell-Raphael, acted illegally and in breach of their remit in blocking lay assessor Veera Bhajan from beginning work after President Paula-Mae Weekes appointed her in March.

The judge also ordered the tribunal to pay Bhajan’s salary and benefits, plus interest, as well as compensation for distress and embarrassment and vindicatory damages to highlight the court’s strong feelings over what happened.

It also earned the tribunal and its chairman strong expressions of rebuke from the judge, who also suggested the chairman should reflect on whether she was the “best fit” for the EOT.

Bhajan, an attorney, received a three-year appointment on March 17. She took the tribunal and its chairman to court after she was unable to take up the job after taking her oath. She said she had not been given any information and was treated with “scant regard.” Nor was she paid.

Bhajan, who was awarded the Hummingbird Medal (Silver) in 2011, was born without arms. She said in her lawsuit she was being blocked from taking up the position, accusing the EOT and its chairman of acting in bad faith and in excess of their jurisdiction, depriving her of a legitimate expectation by failing to comply with the law.

She maintained she was lawfully appointed by the President as a lay assessor and had not been fired, nor had her appointment revoked by any court.

In its statement on Thursday, the tribunal said it has always been “guided by best practices and mature, reasoned legal and professional advice in these proceedings.”

It added, “The actions of the chairman have and continue to be consistently intended to protect the independence and survival of the tribunal, its finances, and the well-being of its staff in keeping with the oath of office ‘without fear or favour.’”

It also said while the tribunal did not intend to challenge the orders of the judge, the chairman intended immediately to appeal the court’s orders and findings against her on the ground that Quinlan-Williams made serious “errors of law which precipitated erroneous declarations and awards of damages.”

It also said it noted several news articles and social commentary the words of the judge had provoked. Since the court’s ruling, the tribunal and its chairman have come under fire from the public over its treatment of Bhajan.

It said Prowell-Raphael respected the court as an institution, and its judgments.

Although on Thursday it did not issue any statement in relation to Bhajan, it did on the evening of the court’s ruling, saying again it was “guided by best practices and professional advice at all times.”

It also said on Tuesday it respected the court’s ruling and will meet with its attorneys to determine its next steps.

While the tribunal said in keeping with the general practice of judicial institutions, it did not ordinarily comment in the public domain on judicial matters, this was an “unprecedented one” and it was constrained to “protect and ensure continued public confidence and trust in its operations, which are essential to the performance of its statutory duties.”

It said Bhajan’s lawsuit raised several issues of national importance, adding it was “predicated on what appeared to be an irregular appointment of a lay-assessor, and her ensuing expectation to immediately assume office and to be paid emoluments, at a time when the tribunal was crippled and did not have the infrastructure, financial wherewithal or resources to do so.”

The statement said it was "critical to note" that at no time in the pleadings were allegations of discrimination on the basis of race, disability, or hate raised by Bhajan’s attorneys, admitting, however, this point was now moot. During oral submissions Bhajan's attorney raised a letter from the chairman to the President suggesting the possibility of Bhajan's being biased because of her disability and the judge referred to it in her ruling.

On Tuesday, Quinlan-Williams described the records of communication between the chairman and the President as “disturbing.”

“That communication is as if the claimant is not a real person; as if she does not exist and is invisible.”

She also said, ‘No regard to the mandate of the Equal Opportunity Tribunal to defend discrimination and to promote equal opportunities for person for persons of unequal status. No regard as to how it will look to the rest of us that a person who was lawfully appointed by Her Excellency cannot get her just due from the Equal Opportunity Tribunal and the chair of the Equal Opportunity Tribunal.”

However, the tribunal in its statement said because these issues were not raised in the pleadings, there was no necessity or reason for it and its chairman to consider and/or defend “these scandalous and unfounded suggestions” at the trial.

It added, “The evidence adduced in the matter included the transparency, procedure and fairness of legislative appointments and sought judicial confirmation as to whether public officers should be paid from the date of their appointments or from the date of their assumption of office.”It maintained that public officers are paid from the date of their assumption of office and not from the dates of their appointments and there have been no official government directions changing this practice in the public service.

“The unchallenged facts put forward by the tribunal was that the tribunal was closed, because of the numerous challenges it faced (no internet, no phone service and unsafe conditions and improper ventilation etc.) and therefore the appointment could not be facilitated.”

It also said the chairman's appeal of the judge’s decision will be predicated on the advice of Senior Counsel Ramesh Lawrence Maharaj, who led the team of attorneys for the tribunal and its chairman, that the judge had no jurisdiction to make the orders she did because Bhajan did not plead any sustainable claim with a cause of action to warrant the award of damages.

The statement said Maharaj also advised that the court-ordered compensation was inconsistent with established principles of law and the adverse comments made against the chairman were unsupported by any evidence in the case.The tribunal also e-mailed to media houses, the chairman's affidavit relied on in defence of Bhajan's lawsuit.