Court rules in favour of public health inspector over vacation leave

A career public servant who challenged civil service regulations restricting the annual leave of a public officer charged with indiscipline or misconduct has won her lawsuit against the State.

In a written ruling, Justice Devindra Rampersad declared that regulations 76 and 97 which prevented a public officer from accessing or accumulating leave, other than sick or maternity leave, if they were facing a disciplinary charge were unconstitutional and amounted to the “unlawful infliction of a penalty.”

The judge was ruling in a claim filed by public health inspector 1 Daisy Boodram.

Rampersad said there was “absolutely no reason” why the disciplinary charge process could not be facilitated and scheduled around a public officer’s vacation leave.

“To restrict it in the manner in which regulation 97 has done unfairly targets the officer when there are alternate and less restrictive options open to achieve the same purpose and there is no guarantee of expeditious resolution.”

He agreed there was a need to balance vacation against the efficacious and expeditious resolution of charges. However, he said this did not require a suspension of vacation leave.

Boodram, who became a public health inspector in May 2014, challenged the laying of charges against her, in November 2019, as well as the constitutionality of the regulations which prevented her from accessing her vacation leave to travel to the United States to support her common-law husband who was diagnosed with stage four cancer in 2022.

After the charges against her were referred to a disciplinary tribunal in July 2020, Boodram challenged the allegations and was granted an injunction in June 2021, pending the determination of her challenge.

That matter is currently before Justice Nadia Kangaloo.

In 2022, when she applied for vacation leave, she was told by the Ministry of Health she could not access her vacation leave - some 105 days - because of the pending disciplinary charges.

She then applied for emergency leave which was eventually granted after she threatened further legal action.

In his ruling, Rampersad expressed concern there were parallel matters before another judge concerning the disciplinary charges.

However, Boodram’s attorney, Anand Ramlogan, SC, argued that the matter was of fundamental public importance since it affected the largest single workforce of the public service and these provisions created the potential for violation of their rights.

Attorneys for the State argued that Boodram’s claim over the regulations involving vacation leave was academic since was allowed to proceed on leave from July 11 - September 16, 2022.

The judge also commented on the “savings law clause” although it did not feature in the claim.

“...It was surely meant to be a stopgap in a period of transition into a constitutional democracy. Even though that clause is not the subject of these proceedings, the fact is that the court must consider once and for all whether or not a challenged provision of the laws is constitutional as to leave it unanswered would be to bring the administration of justice and the adherence to the Constitution in disrepute.

“nothing has been done to remove these relics from the laws of TT as the country continues to hide behind the savings law clause which in this court’s respectful view, has long outgrown its restrictive and baseless assumption of constitutionality.”

Rampersad also said Boodram was entitled to challenge the charges against her as well as her claim against the constitutionality of the restrictions to accessing vacation leave while facing disciplinary charges or its accumulation.

He said not only would Boodram have lost her accumulated leave, but there would be an “obvious impact” on her physical and mental health.

“It is clear that the need for vacation leave is not only one for the benefit of the employee but also for the employer in the long run. Bearing in mind the curtailment of that benefit, it is necessary to understand the reasoning behind this regulation.

“...The suggestion is that the regulations strike a fair balance between the rights of the claimant in the interests of the employer and is therefore proportionate. The court does not agree.

“Further, it is considered oppressive, harsh unfair and contrary to good industrial relations and practice to condemn a worker to terms and conditions of employment whereby they are not entitled to any form of vacation leave for an indeterminate period pending the hearing and determination of the disciplinary proceedings.

“The court is, therefore, convinced that, as formulated, the regulations combine to create a penalty by depriving the claimant of the right to vacation leave in the face of the charges against her for which no legitimate and appropriate justification has been presented and the trigger is the mere preferment of a charge of misconduct.”

Rampersad did not order compensation for Boodram but instead held that the declarations granted were sufficient.

She was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Kent Samlal, Natasha Bisram and Vishaal Siewsaran while Keisha Prosper, Aryanta Williams, Radha Sookdeo and Kezia Redhead appeared for the Attorney General.