A prison officer, who was on maternity leave when she was accused of resigning her job and fired over a decade ago, won her case in court yesterday.
In a written judgment, Justice Frank Seepersad criticised and squashed the decision of the Public Service Commission which he described as grossly unfair, irrational, illegal and outrageous.
The judge also took a dim view of the Prison Service which he labelled as misogynistic and archaic.
The judge said, “The course of action adopted by the defendant (Commission) has been characterised by a disturbing degree of arbitrariness and has instilled a measure of disquiet in the court’s mind.
“The court has been left with the impression that the Prison Service and the defendant may have viewed the claimant’s pregnancy as an inconvenience. Any such notion, however, has no place in a democratic and progressive society where equality of treatment under the law and gender equality should be viewed as being of paramount import.”
Favianna Gajadhar filed for judicial review after the commission sent her a letter in April 2008 proposing to declare her as having resigned her office with effect from June 21, 2007 on the grounds that she had been absent from duty from April 27 2006.
She challenged the decision and the Court of Appeal found that the commission acted in breach of the principles of natural justice and ordered that the matter be remitted to the commission for its review.
However, the commission failed to follow the directives of the Appeal Court and Gajadhar again returned to the court.
A consent order was entered that the commission would reconsider its decision in accordance with the Court of Appeal’s judgment.
Gajadhar provided the required medical documents to account for her absence to the commission, but having reviewed them the commission pointed to another issue— a discrepancy of one month in relation to the estimated delivery date of her baby and expected delivery date on the Maternity Benefit Application.
As a result, the commission wrote to Gajadhar in 2017 stating that they were standing by their decision that she had resigned from her office. In response to her pre-action protocol letter, the commission said the reason for their decision was “the different estimated delivery dates which were endorsed on the claimant’s maternity leave certificate and her Maternity Benefit Application.”
Delivering judgment in the San Fernando High Court, Seepersad said, “On the evidence which was available and given its position that the medical certificates were submitted, the defendant’s decision to declare that the claimant had resigned her office is outrageous and defies logic. It simply is not a decision which a sensible person who applied his/her mind to the question to be determined could have arrived at.”
“Having accepted that the submitted medical certificates and the maternity benefit application covered significant periods of absences, the shifting of the goal post after a decade and its view that the Claimant failed to apply for maternity leave in accordance with the Maternity Protection Act is simply untenable and grossly unfair.”
In relation to the discrepancy of one-month in relation to the estimated delivery date of her baby, Seepersad said consideration should have been given to the fact that she did not author the medical documents which were prepared by a medical practitioner.
The judge said a decision was taken that she resign her job, but no disciplinary hearing accompanied by the attendant procedural safeguards was engaged.
“Further, the court is not satisfied that the defendant took into consideration inter alia the claimant’s work record, age of the matter and the impossibility of her providing an explanation in relation to independent medical records which she did not author. The court also finds that the defendant failed to comply with the advice or directives of the Court of Appeal.”
The judge remitted the matter to the commissioner with a directive that it reconsiders its decision in accordance with the findings of the court.
The judge also ordered costs to be assessed by the registrar in default of agreement. The judge granted a 21-day stay of execution.
Gajadhar was represented by Anand Ramlogan SC, Gerald Ramdeen, Jared Jagroo and Alana Rambaran while Ian Benjamin SC, Keisha Prosper, Anala Mohan and Candice Alexander represented the commission.