Lawyer slighted by missed promotions sues Gov’t

A lawyer employed to the Attorney General’s Chambers (AGC) who claimed he was overlooked for promotion for 10 years is challenging the decision of the Public Service Commission (PSC) to dismiss his appeal after he was denied being elevated in 2020.

The issue arose after 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 the 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.

Consequently, Austin, through his attorney-at-law, Hugh Wildman, filed an application for permission to apply for a judicial review and is now awaiting a decision of the Full Court on whether he will be granted permission following a hearing last month.

Austin is contending, among other things, breaches of his constitutional rights, which 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; that it acted contrary to the Public Service Regulations over a decade by its failure to discharge its obligation to ensure a fair process for the consideration of Austin’s promotion; and that that failure was a breach of his constitutional rights.

Austin is also seeking declarations that the PSC’s dismissal of the appeal is an abuse of power, and orders of mandamus to compel the commission to immediately establish a process of fair and continuous consideration of his promotion to higher posts as they become available.

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.

But Austin had also challenged that decision by way of a judicial review and was successful in getting his termination quashed in 2018.

The Full Court, in the interim, had ordered a stay of his termination, but Austin, in 2016, had also sought a judicial review of a decision by the then Solicitor General Nicole Foster Pusey’s recommendation to the permanent secretary that he be relocated elsewhere until the claim was resolved.

That application was, however, refused in December 2017 on the basis that it was premature, as the permanent secretary had not yet ruled.

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.

Additionally, Austin claims that the PSC has continuously failed to provide him with opportunities to be heard for consideration for promotion over his tenure and his right to a fair hearing. He argued that the principles of natural justice have consistently been endangered by potential and actual bias of the respondents, who owed him judgment debts and costs over the years and have published and republished defamatory statements about him and have had a history of hostility towards him.

But attorney-at-law Allan Wood, QC, who appeared for the respondents, submitted that the application for leave should be dismissed, as Austin has not shown any arguable grounds for a realistic prospect of success.

Among Woods’ arguments are that there is no merit in the grounds that Austin was victimised and treated unfairly, as he was allowed to proceed to the interview process even though he was not shortlisted after scoring the lowest grade on the written test. He said further that Austin’s appeal was properly considered and that there was no need for an oral hearing.

He also averred that there are no facts to support any bias against Austin by the respondents in his affidavit, adding that the claimant had failed to mention the legal challenges he had mounted before now and that those had led to him being unable to apply, or to be considered, for a promotion.

tanesha.mundle@gleanerjm.com