Not a demotion!
Court rules Dean-Roy Bernard transfer unconstitutional but not a downgrade; orders reinstatement in three months
The Supreme Court on Wednesday ruled that Dean-Roy Bernard be "reassigned to a permanent secretary position within three months.

The Supreme Court full panel which on Wednesday ruled that former education ministry permanent secretary Dean-Roy Bernard's reassignment to the Ministry of Finance and the Public Service as director general in 2019 was "unconstitutional", has emphasised that the move was "not a demotion" or a "disciplinary action".

Bernard had sought several declarations from the court, including one that the governor general is not empowered to reassign a permanent secretary; that he is still the holder of the office in the education ministry; and a declaration that his assignment to the finance ministry is in breach of his legitimate expectation that he would remain in the capacity of permanent secretary of the Ministry of Education. He had also sought a declaration that a permanent secretary must be permanently appointed within the meaning of the Constitution, and an order mandating the Public Service Commission to reverse its directive to reassign him and recognise him as the duly appointed permanent secretary in the Ministry of Education. Furthermore, he had argued that his re-assignment to the position of director general in the Ministry of Finance without him being given a hearing, is a breach of natural justice.

His reassignment followed on the fallout stemming from allegations of financial impropriety against former education minister Ruel Reid, and Caribbean Maritime University (CMU) President Professor Fritz Pinnock. Bernard had held the post from 2016.

The court, in a judgement handed down on Wednesday, however, held that generally the transfer of a permanent secretary from one ministry to another would not require a hearing as it would not entail a change in the status or emoluments.

According to the tribunal, the issue in the case was whether Bernard's reassignment was in fact a demotion.

"If that was the position, then the claimant would have been entitled to a hearing. There was no change in the salary and emoluments of the claimant, except for increments. I do not find that there was a breach of natural justice as it relates to the reassignment of the claimant. I do not find that this was a demotion, nor does it amount to a disciplinary action. I therefore find that there would have been no requirement to convene a hearing in these circumstances," the ruling said.

Meanwhile, the court said "the inability to transfer a permanent secretary would lead to absurdity". It said "practically, this would mean that a permanent secretary who would be better suited at another ministry could never be transferred".

In respect of Bernard's claims that he had automatically received annual increments prior to being reassigned to the Ministry of Finance, the court pointed out that "he had stopped receiving them once he was reassigned". It also said he had failed to produce evidence supporting his position that increments were automatically granted.

"Although the claimant made bald statements about non-payment of increments, no evidence, apart from a salary scale, was produced to the court as to his income at the time of reassignment and the income he was to be receiving," the court said.

In the meantime the court, in noting Bernard's witness statement, where he said that the transfer to the Ministry of Finance had led to, among other things, "embarrassment", said while "there are occasions when sums are awarded for breaches of constitutional rights" it was "not minded to award any sums in this case in light of the fact that an order has been made for him to be assigned to a ministry".

"I will therefore not grant any award for the claim for damages. The final relief sought by the claimant was aggravated damages. The claimant failed to advance any pleadings, or to solicit any evidence by which a finding could be made for aggravated damages. The claimant is awarded costs in this matter to be agreed or taxed," the court ruled.

The court yesterday, in ruling that Bernard be "reassigned to a permanent secretary position within three months", said while it found that Bernard "could be reassigned based on Section 126 of the constitution, the section must be read in conjunction with the interpretation section of the constitution. As such, it said it found that "the newly created position of director general has no job description and is not commensurate with the position of permanent secretary".

The court said as such it found "that the claimant having been reassigned from the position of permanent secretary to the position of director general was unconstitutional".

BY ALICIA DUNKLEY-WILLIS Senior staff reporter

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