Equal Opportunity Tribunal (EOT) chairman Donna Prowell-Raphael unsuccessfully sought to get President Paula Mae-Weekes to revoke the appointment of national award recipient Veera Bhajan as EOT lay-assessor as she (Prowell-Raphael) felt that she may be perceived to be biased based on her own disability.
The approach was highlighted by Bhajan’s attorneys and those for the Office of the Attorney General yesterday, as they presented submissions before Justice Avason Quinlan-Williams in Bhajan’s judicial review lawsuit over being allegedly blocked from taking up her appointment.
Bhajan’s lawyer, Senior Counsel Alvin Fitzpatrick described Prowell-Raphael’s approach to President Weekes as “incredible and shameful”.
“Here you have the chairman of the EOT, a tribunal set up to protect against discrimination towards disabled persons, seeking to have her appointment revoked based on her disability,” Fitzpatrick said.
Fitzpatrick’s position was supported by attorney Rishi Dass, who led the legal team for the AG’s Office, and described Prowell-Raphael’s conduct as “gaslighting”.
Dass also questioned whether Prowell-Raphael’s purported rationale over the ability of a disabled person to act impartially on such a body as he pointed to former Independent senator and current Equal Opportunity Commission (EOC) chairman Ian Roach, who is wheelchair-bound.
“Mr Ian Roach is disabled. Should he also be removed?” Dass said.
In his submissions, Fitzpatrick noted that after President Weekes made the appointment on March 17, the EOT and Prowell-Raphael gave varying “spurious” reasons why Bhajan, who was born without arms and was awarded Hummingbird Medal (Silver) in 2011, should not take up the position.
He noted that in addition to citing the EOT’s current financial limitations and its minimal work during the ongoing COVID-19 pandemic, Prowell-Raphael also claimed that Bhajan did not have the prerequisite of 10 years experience as an attorney as required under the Equal Opportunity Act (EOA).
He admitted that after the issue with Bhajan’s experience was first raised, President Weekes sought to address the issue by making an administrative amendment and appointing Bhajan based on having 10 years combined experience in law and social work as allowed under the legislation.
Fitzpatrick pointed out that despite Prowell-Raphael’s seemingly evolving rationale, the EOT sought to solely rely on its current financial issues in defence of the lawsuit.
He also questioned Prowell-Raphael’s claim in the lawsuit that she did everything in her power to facilitate Bhajan’s appointment.
“It simply is not true,” Fitzgerald said, as he claimed that her alleged attempts to stymie the appointment brought the EOT into disrepute.
Dass stated that once the President appointed Bhajan, the EOT did not have the remit to challenge the appointment in the way it did.
“You do not simply get to flout the decision,” Dass said, as he noted that the EOT could have brought a lawsuit over the issue.
Dass also questioned the EOT’s claims that it could not afford to pay a second lay-assessor as he claimed that such funds would be approved by Parliament as the legislation prescribed that the EOT should consist of a Chairman and two lay-assessors.
While Dass said his client supported Bhajan’s lawsuit inclusive of her claims for the salary she should have received after being appointed, he noted that it did not support additional claims for vindicatory damages, which would have to be paid by taxpayers.
Responding to the case, Senior Counsel Ramesh Lawrence Maharaj claimed that Prowell-Raphael was entitled to raise her concerns over the appointment as such consultation was the established practice for EOT appointments in the past.
“A public officer is entitled to express concerns about appointments...That is part of the rule of law,” Maharaj said.
Maharaj claimed that as Bhajan and the AG’s Office elected not to apply to cross-examine Prowell-Raphael, the court had to accept her evidence over the EOT’s financial limitations.
“It was impossible for these duties to be assumed,” Maharaj said.
Asked by Quinlan-Williams if the situation was still the same, Maharaj could not immediately answer the question as he said that he would have to consult with his client and report back to the court.
Maharaj claimed that Bhajan was not entitled to compensation for stress and embarrassment as such was not possible in judicial review cases.
He alleged that Bhajan should not have been allowed to pursue the case as her legal team withheld evidence over the EOT’s handling of the situation when the lawsuit was filed.
Maharaj also claimed that Bhajan failed to disclose that she was teaching yoga classes while pursuing the lawsuit.
Fitzpatrick stated that the yoga classes were totally irrelevant as Bhajan gave up her practice as an attorney-at-law to take up the post and only earned a paltry sum to help support herself and her family.
After hearing the submissions, Justice Quinlan-Williams reserved her decision for November 23.
Through the lawsuit, Bhajan is seeking a series of declarations against the tribunal and Prowell-Raphael that they acted in excess of their jurisdiction and in abuse of their power. She is also seeking an order quashing the decision and another mandating that she take up the appointment.
Under the EOA, the tribunal consists of a Chairman and two lay-assessors. While the Judicial and Legal Service Commission (JLSC) advises the President on the appointment of the Chairman, the lay-assessors are selected solely by the President.
The tribunal is mandated to hear and determine discrimination complaints under the legislation, which are referred to it by the EOC.
Bhajan was also represented by Rajiv Persad, Michael Rooplal, Rajiv Chaitoo, Shari Fitzpatrick, and Gabriel Hernandez. The EOT and its chairman are being represented by Leon Kalicharan, Kiel Taklalsingh, and Karina Singh. Tenille Ramkissoon, Svetlana Dass, and Karissa Singh appeared alongside Dass for the AG’s Office.
