Derek Achong

A prison of­fi­cer has emerged vic­to­ri­ous fol­low­ing an over decade-long le­gal bat­tle with the Pub­lic Ser­vice Com­mis­sion (PSC) over be­ing de­clared to have aban­doned her job af­ter miss­ing work for sev­er­al months due to in­jury and preg­nan­cy.

De­liv­er­ing a writ­ten judge­ment in an ap­peal brought by the com­mis­sion late last week, Ap­pel­late Judges Al­ice Yorke-Soo Hon, Nolan Bereaux and Mi­ra Dean-Ar­mor­er ruled that the com­mis­sion act­ed ir­ra­tional­ly and un­fair­ly in its han­dling of Fa­vian­na Ga­jad­har’s case.

Ac­cord­ing to the ev­i­dence, Ga­jad­har, who joined the T&T Prison Ser­vice in 2000, suf­fered a back in­jury and was ab­sent from du­ty for ex­tend­ed pe­ri­ods be­tween 2004 and 2006. Ga­jad­har al­so got preg­nant dur­ing the pe­ri­od and sought to re­sume her du­ties three months af­ter her daugh­ter was born in June 2006. How­ev­er, she was barred by her su­per­vi­sor, who in­di­cat­ed that she could not re­sume du­ties be­cause she had not prop­er­ly ac­count­ed for the pe­ri­ods of her ab­sence.

While Ga­jad­har claimed that she sub­mit­ted her sick-leave and ma­ter­ni­ty leave cer­tifi­cates, the com­mis­sion still de­clared she had ef­fec­tive­ly re­signed from her post, ef­fec­tive June 2007, as she was ab­sent with­out leave be­tween April 2006 to then.

Ga­jad­har filed a ju­di­cial re­view case against the com­mis­sion, which was up­held by the High Court and Court of Ap­peal, who or­dered the com­mis­sion to re­con­sid­er.

The com­mis­sion re­con­sid­ered the is­sue in No­vem­ber 2017 and stood by its ini­tial de­ci­sion, al­beit for a dif­fer­ent rea­son, an is­sue with Ga­jad­har’s ma­ter­ni­ty leave ap­pli­ca­tion. Ga­jad­har brought an­oth­er law­suit against the sec­ond de­ci­sion, which was al­so up­held lead­ing to the cur­rent ap­peal.

In the ap­peal, the Court of Ap­peal ruled that the PSC could not main­tain its po­si­tion on new grounds with­out al­low­ing Ga­jad­har to re­spond to it.

“It seems to us that there could be no counter-ar­gu­ment that the chang­ing of rea­sons by a de­ci­sion-mak­er, as a mat­ter of prin­ci­ple, is un­fair,” Dean-Ar­mor­er, who wrote the judge­ment, said.

The Ap­peal Court al­so sought to ques­tion the ground the PSC sought to re­ly on the sec­ond time around.

“The dis­crep­an­cy was not on­ly triv­ial but had been the re­sult of the mis­take of some un­known of­fi­cial at the Port-of-Spain Gen­er­al Hos­pi­tal and of which rec­ti­fi­ca­tion would have been im­pos­si­ble,” Dean-Ar­mor­er said.

“A de­ci­sion to ter­mi­nate Ms Ga­jad­har’s em­ploy­ment for such a dis­crep­an­cy is one which no rea­son­able Com­mis­sion would make,” she added.

De­spite its rul­ing in the case, the ap­peal pan­el ruled that Ga­jad­har did not have a le­git­i­mate ex­pec­ta­tion that she would be au­to­mat­i­cal­ly re­in­stat­ed af­ter suc­ceed­ing in her law­suit and ap­peal. That de­ci­sion means that the PSC will now have to re­con­sid­er her case for a third time based on the guide­lines is­sued by the pan­el.

The PSC was rep­re­sent­ed by Ian Ben­jamin, SC and Keisha Pros­per. Ga­jad­har was rep­re­sent­ed by Anand Ram­lo­gan, SC, Ger­ald Ramdeen, Renu­ka Ramb­ha­jan and Jared Ja­groo.