Sent home for being blind - … Visually impaired man wins first round against NEPA for being forced to retire
It’s been a ‘rough’ last 19 months for 61-year-old Kojo Dawes who is in a keenly watched court battle with two government entities over his forced early retirement from the public service after he became blind on the job.
It is a case leading lobbyists for persons with disabilities (PWDs) are wondering could have been avoided if the disabilities law, which was approved in 2014, was in effect.
Last month, the Supreme Court granted Dawes permission to seek a judicial review of the 2019 decision taken by the National Environment and Planning Agency (NEPA) where he worked for over 27 years as a property, transport and security officer.
The health ministry, under whose authority medical boards are established to consider whether to retire a public servant for health reasons, is the other entity in the case.
Dawes lost his sight on April 20, 2016, owing to diabetes and hypertension complications, and almost three years later, on January 21, 2019, contended that he was informed by Peter Knight, NEPA’s chief executive officer, and Karlene Hamilton-Reid, human resource director, that the health ministry said he was to be “medical boarded”.
The decision was effective December 21, 2018, but was extended to March 29, 2019.
Following the diagnosis, Dawes underwent surgery which temporarily restored some vision but which permanently went in June 2017.
Since then, Dawes said he had been working and performing all his duties, which included beach and property maintenance.
“There were no complaints about the quality of his work. In fact, he was praised in his annual assessment for maintaining standards of work despite being visually impaired,” cited Justice Grace Henry-McKenzie in her September 18 ruling.
The application for permission for a judicial review of the decision was late, but the former NEPA employee explained that that occurred because he was trying to “amicably” resolve the matter and secure documentation for the court process.
The application, which was filed on November 18, 2019, should have been filed within three months after he learned of the decision to enforce his early retirement, but there is a dispute between Dawes and NEPA over when he was informed.
The judge said the application was filed “out of time” but noted that the court may extend time “if good reason for doing so is shown”.
NEPA did not object to the extension, but the health ministry did, and its lawyer, Carian Freckleton-Cousins, argued that the delay was “inordinate” and Dawes’ explanation was “without merit”.
However, Justice Henry-McKenzie sided with Dawes, noting his attempts to settle the matter outside of court.
On the application for a judicial review of NEPA’s decision, the judge noted that the court was not “so much concerned with the substance or the merit of the decision … but with the process by which the decision was arrived at”.
It was up to Dawes to prove that he had a case with a realistic prospect of success, which his attorney, Nastassia Robinson, for the rights group Jamaicans For Justice, insisted on.
She argued that NEPA and the Ministry of Health and Wellness acted “unlawfully, unfairly and without just cause” in violation of the Government’s 2004 Staff Orders for the Public Service, NEPA’s policies and the 2014 Disabilities Act.
Under the Staff Orders, a public servant can be asked at anytime to submit to an examination by a medical board established by the chief medical officer (CMO) in the health ministry “if it appears that the officer’s state of health warrants such an examination”.
The CMO can forego using the board if satisfied with the information coming from the requesting government department.
Regarding disability, the Staff Orders said “its nature, when it occurred and all relevant circumstances should be stated”.
Dawes’ lawyer contended that no medical board was established and that her client was not asked to submit to a medical examination.
Dawes was “retired on the basis of a medical report from Dr Lizette Mowatt, his ophthalmologist, which did not state that the applicant was incapable of continuing his employment and which was in fact favourable to him”, said the judge in summarising Robinson’s arguments.
Robinson further argued that the only reason Dawes was dismissed was because of his blindness, because, up to December 2018, his appraisal scores were over 90 per cent, there were no complaints against him, and that the environmental protection agency did not even try to reassign or redeploy her client.
NEPA’s attorney, Philip Cross, objected to the application for judicial review, labelling it a “frivolous” case that was not likely to succeed and that there were other suitable alternatives through the finance and labour ministries to address the issues.
Cross further argued that NEPA followed proper procedures, relied on the medical reports Dawes released to the health ministry, noting in particular that it was Dawes’ own doctor who declared him legally blind.
Dawes was informed of the medical boarding process and that an oral hearing was unnecessary, the lawyer said.
In her affidavit, NEPA’s HR head reportedly said, after Dawes became ill, he was unable to independently verify work done by his staff or external parties and would reassign some of his major tasks.
Justice Henry-McKenzie affirmed that Naydene Williams, who was in charge of the medical boarding process at the time, did not have to establish a board, and pointed to her reliance on the reports of the ophthalmologist and NEPA.
Pointing to Dr Williams’ “terse letter” of December 14, 2018, the judge described as “compelling” Dawes’ attorney’s arguments that the letter recommending the early retirement did not follow the guidelines, which included stating that Dawes was incapable of doing his job.
“Based on the medical report from Dr Lizette Mowatt, consultant ophthalmologist, it is recommended that Mr Kojo Patrick Dawes be retired on medical grounds, effective December 21, 2018,” was all Williams wrote.
However, in her letter, Dr Mowatt noted that, although it was unlikely that Dawes’ vision would improve, he had adapted well and could continue working with support.
“Due to his significant experience with his work, he appears to be managing, but could benefit from low vision aids to assist functionality at work,” Mowatt wrote on September 14, 2018.
The judge was persuaded by Robinson’s “forceful” arguments and concluded that there was no medical report; the case had a realistic prospect of success and that “proper procedures were not followed … and that he (Dawes) was unfairly treated”.
“The applicant has also made out an arguable case … that he was not offered the option to be reassigned or redeployed,” the judge further said.
Justice Henry-McKenzie also noted that, while the issue of when Dawes was first informed of the medical boarding process remains in dispute, “it is well recognised that the principles of natural justice must be observed and persons who are directly and personally affected by a decision must be kept informed and must be given the opportunity to be heard”.
While accepting that all other alternatives for settling the matter were not used, the judge said that should not bar Dawes from being allowed to access judicial review.
In a Sunday Gleaner interview, Dawes said life has been hard since his ‘retirement’, noting that he has had to delay claiming from his pension while the case remains undecided.
“I was the main breadwinner and I was planning to send my second son, who is now 19 years old, to university but I couldn’t and I can’t. I was just given three months and terminated and I couldn’t have made much plans as I had to because I was expecting to retire at 65 and I had everything in place for that,” he said.
“It’s been extremely difficult. Almost a hand-to-mouth that we’re living off,” he said of his family.
It still hurts him that NEPA, as he claims, did not provide him with on-the-job support, “I had to find my own way around. I was not given any assistance.”
“There were no complaints at all. I was never written up. I was never reported. I was never told that my work was not up to scratch, not once, so all this came as a bit of surprise. I did prove that with my disability I was 100 per cent,” Dawes shared, adding that his wife gave him some assistance.
“If I wasn’t blind I’d still be at NEPA right now,” added Dawes, who said he would have been willing to work with a reassignment.
Robinson told The Sunday Gleaner that it is “curious” how NEPA and the health ministry jumped from Mowatt’s recommendation to Dawes being “unfit to perform his duties”.
“Our case would be a lot stronger if the Disabilities Act was in force. It sets out certain things that ought to happen when an employee has a disability or becomes disabled on the job,” she said, referring to the requirement under the law for employers to redeploy a worker if necessary.
Robinson said the case is more than just a labour issue because it involves questions about how public bodies exercise their powers on medical board staff.
Peter Knight, NEPA’s chief executive officer, declined to comment, saying the matter was still before the courts.
The substantive matter is down for hearing on March 25, 2021.
TEN SIMILAR CASES
Gloria Goffe, the executive director of the Combined Disabilities Association, and Conrad Harris, who heads the Jamaica Society for the Blind, are insistent that the Kojo Dawes case highlights why the authorities need to move faster to implement the disabilities law so PWDs can benefit from increased protection.
“Agencies, once you become disabled, immediately they begin to think of you as someone with a health challenge that cannot be corrected or with a challenge that cannot be accommodated,” said Goffe, who is also the deputy chair of the state’s Jamaica Council for Persons with Disabilities, which will be tasked with enforcing the law.
At least 10 cases similar to Dawes’ have emerged over the past five years, she said, with Harris adding that many others go unreported, leaving adverse decisions of employers unchallenged.
“Many times, the persons don’t really choose to fight the issue. They accept and take what they can get and leave,” Harris said, arguing, too, for a revision of the medical boarding process “to recognise that the fact that someone has a disability doesn’t disqualify them for work”.
David Wan, president of the Jamaica Employers’ Federation, is urging his members to ensure that they follow the law, but also “accepted practices” related to the treatment of persons with disabilities.
In a statement, Karl Samuda, who leads the Ministry of Labour and Social Security (MLSS) which has responsibility for the Disabilities Act, said he is pushing for the law to take effect by March 31 next year.
“In order for it to be enacted, there are several other things that need to be in place first, such as the accompanying regulations, codes of practice, as well as the establishment of the Jamaica Council for Persons with Disabilities as a body corporate. We are well in advance in relation to these items,” Samuda said.
Two of the codes are finished, the regulations to operationalise the law are ready for Cabinet’s review and the council’s corporate structure is awaiting approval from the finance ministry, said Colette Roberts-Risden, permanent secretary within the MLSS.
It is estimated that some 540,000 Jamaicans are PWDs, with the employed numbers unclear.