Sun | Jul 3, 2022

Lawyer gets green light to challenge AG

Published:Wednesday | May 18, 2022 | 12:11 AM

A government lawyer who claimed he was overlooked for promotion in the Attorney General’s Chambers for 10 years has been granted permission by the Supreme Court to challenge the decision of the Public Service Commission (PSC) to throw out his appeal after he was denied a promotion in 2020.

The judicial review hearing is scheduled for June 28.

The applicant, Dale Austin, a Crown counsel, had applied for the post of assistant attorney general in March 2020 but was advised last April by Solicitor General Marlene Aldred that he would not be recommended for promotion as he had scored the lowest grades of all the candidates.

Austin, however, had appealed to the PSC, but the body, after examining his scoresheet, qualifications, and job description, informed him that his appeal lacked merit.

But Justice Andrea Pettigrew-Collins, in granting Austin leave for the judicial review, concluded that while she doesn’t believe that he will be victorious in all the legal remedies being sought, he has raised sufficient doubt in relation to the validity of the Accountability Agreement and the constitutionality of the present arrangement for employment and promotion for public servants.

Under the agreement, which was made in 2015 between the PSC and the permanent secretary in the Ministry of Justice, the governor general had delegated most of the functions under the Public Service Regulations to permanent secretaries/heads of department, including the Attorney General’s Chambers.

“The legitimacy of the scheme of arrangement is questionable, partly on account of the fact that the Accountability Agreement has not been gazetted and is in my view, subject to judicial review on the ground of illegality,” Pettigrew-Collins, in her recently published judgment said.

She further indicated that there are concerns that the commission ought to have considered the applicant’s eligibility for promotion from time to time as vacancies occurred based on the regulation that governs the commission and that he should have been given a reason for his ineligibility.

The judge is also of the view that Austin was entitled to a hearing before Aldred made her decision.

BREACH OF RIGHTS

Austin is contending, among other things, breaches of his constitutional rights, which he claimed caused him to suffer damage and loss as a result of the PSC, the attorney general of Jamaica, and Aldred, who are first, second, and third respondents, respectively. He has also alleged procedural irregularity and wrongful exercise of power by the solicitor general.

The claimant is also seeking damages, special damages, and several administrative orders, including declarations that the commission had no good reason for dismissing his appeal, that it had acted unreasonably and irrationally, among other things.

The employee, who initially started as a temporary assistant Crown counsel in October 2011, has had a litigious journey with the state agency since his employment was terminated a year later in March 2012 after he was found to be indebted following an investigation.

Meanwhile, among the grounds being posited for the orders are that Austin is the longest-serving member of his division and is the only one who has not been promoted over the stated period despite being evaluated as a worker who exceeded his performance targets, and even though there had been 63 openings for posts for which he could have been considered.

Attorneys-at-law Hugh Wildman and Indira Patmore represented the applicant, while Garth McBean, QC, and Dian Jobson represented the PSC.

Allan Wood, QC, and Analeise Minott appeared for the second and third respondents.

tanesha.mundle@gleanerjm.com