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Sunday 19 August 2018
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Bypassed for promotion, public servant wins lawsuit

A SENIOR public servant, who was bypassed for promotion to four different offices over a twoyear period, was unfairly treated by the Public Service Commission (PSC) and is entitled to compensation for loss of earnings, distress and inconvenience, the appeal court has ruled.

Justice of Appeal Prakash Moosai on Wednesday declared that Audine Mootoo’s right to equality of treatment from a public authority was contravened.

He ordered that she was entitled to a compensatory award for any loss of earnings occasioned by the PSC’s failure to consider her for promotion to the posts as well as for the distress and inconvenience she suffered as a result of the breach of her right. The sum of the compensatory award will be assessed by a Master of the Court.

Justices of Appeal Alice Yorke- Soo Hon and Rajendra Narine also presided over Mootoo’s appeal in which she contended she was discriminated against when she was bypassed for promotion to four different offices between August 2004 and March 2006.

The four positions for which Mootoo, who is due to retire from the Public Service shortly, was bypassed were, acting deputy director, extension training and information services; technical officer (horticulture) in the same ministry; deputy director, agricultural services division (crop production); and acting director horticultural services in the Ministry of Public Utilities.

Mootoo, in 2007 when she filed her lawsuit, was a biochemist II in the Ministry of Agriculture and was represented by Senior Counsel Anand Ramlogan at the appeal.

Senior Counsel Russell Martineau represented the PSC while Neil Byam appeared for the Attorney General.

She claimed that in one of the positions full consideration was given to another officer while in another, the PSC wrongly held that she was not eligible for promotion despite her seniority. She also contended that she was admittedly bypassed for promotion on two occasions to one of the positions she applied for and that the PSC failed to consider her for one of the posts, claiming she never applied for the position.

In his ruling, Moosai held that equality of treatment demanded that decision-makers must be consistent with the procedure and criteria they apply. He pointed out that the cumulative effect of the treatment meted out to Mootoo was not confined to a singular post but extended across a broad spectrum of acting appointments.

“Its effect thereof smacks of unfairness and arbitrariness and constitutes prima facie evidence of unequal treatment contrary to section 4(d) of the Constitution,” Moosai held.

“Even more startling is the fact that she was bypassed for consideration for the post in her own area of expertise (horticulture),” Moosai noted.

He said although she was senior to the persons appointed to the positions for which she applied, she never had the benefit of being lawfully considered under the PSC’s regulations.

“This differential treatment is such as to call upon the PSC to explain and justify the difference in treatment,” the judge said. He noted that no explanation was given by the PSC as to why she was not considered for appointment to the posts.

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