By KEILE CAMPBELL
Tribune Staff Reporter
kcampbell@tribunemedia.net
THE government unlawfully moved five Family Island Administrators out of their posts in 2021 by calling the change a “redeployment”, a step the Supreme Court found was, in substance, an unauthorised transfer that had no legal effect.
In a recently released judgment, Justice Carla Card-Stubbs declared the letters that directed the officers to report to other ministries “null, void and without legal effect”.
The claim was brought by Arimentha Newman, Elizabeth Collie, Ernestine Fernander, Lauretta Marshall and Carletta Turnquest against the Attorney General. The Bahamas Public Services Union, their bargaining agent, was the second claimant.
Justice Card-Stubbs found that letters dated November 29, 2021 and December 21, 2021 amounted to a de facto transfer carried out without the approval of the Public Service Commission and without action by the Governor-General.
According to the judgment, the five officers had been appointed and promoted to the post of Family Island Administrator IV by the Governor-General acting on the advice of the Public Service Commission, then deployed to specific Family Island districts. They later received letters, issued by the Permanent Secretary in the Ministry of the Public Service, directing them to report to other ministries, in some cases immediately.
Although the government described the action as redeployment, the court found the reality was different.
“It is my determination that the reassignment of each Five Family Island Administrator amounted to a transfer in all but name,” Justice Card-Stubbs said.
The ruling turned on process. Transfers of public officers must be made by the Governor-General acting on the recommendation of the Public Service Commission, in accordance with the Public Service Commission Regulations and the General Orders, the court found.
The judge rejected the idea that the transfers could be accomplished through the Permanent Secretary’s letters.
“This means that a Permanent Secretary may not, by letter, bring about the effect of a transfer of a public servant,” Justice Card-Stubbs said, finding the move was ultra vires the governing framework.
The government argued the changes formed part of a “three-pronged” reorganisation process involving redeployment, transfer and reclassification. Justice Card-Stubbs found the evidence did not support that claim. The court said the so-called reorganisation appeared to have involved only the five claimants, with no demonstrated staffing need in the receiving ministries and no evidence of an official transfer process underway.
The judge also noted that, on the government’s own case, neither a transfer nor reclassification could lawfully occur without the officers’ consent.
The judgment found additional breaches under the Industrial Agreement between the government and the BPSU, which sets conditions for how transfers are to be handled. The court found that the employer was required to give notice to both the employee and the union before a transfer took effect, but no such notice was provided before the letters were issued.
Justice Card-Stubbs also found the process breached the principles of natural justice. The letters were directives to leave their posts with immediate effect, the judge said, and the officers were given no fair opportunity to respond before being told to move.
The decision stressed that management authority does not override the rules that govern the Public Service.
“To ignore the rules and regulations governing the Public Service would serve to undermine the entire prerogative, powers and customary functions of management,” Justice Card-Stubbs wrote.
The claimants also asked the court to rule that their constitutional rights, including freedom of association and trade union representation, had been breached. The judge declined to make any constitutional finding, noting that no specific constitutional provisions were properly set out or argued at trial.
The court held that the attempted redeployment was unlawful and had no legal effect once declared so by the court. In reaching that conclusion, Justice Card-Stubbs referenced the Privy Council’s decision in McLaughlin v Governor of the Cayman Islands.
Justice Card-Stubbs also found the claimants were entitled to remedies, including declarations of breach and damages. The court reserved questions of reinstatement and the assessment of damages for further submissions and directed that the parties return for a hearing on those matters.
Costs were awarded to the claimants, with the defendant ordered to pay costs to be assessed by a registrar if not agreed.
Submissions on damages are expected to be heard on May 14.
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