'A breach of constitutional rights'
By Stuart Roberts
The Collector of Customs was accused of breaching a black Bermudian man's constitutional rights when an equally unqualified white Canadian woman was appointed as Assistant Collector in 2002.
Human rights lawyer Mark Diel represented 20-year Airport Customs Officer Troy Caines in a Human Rights Board of Inquiry � made up of Chairman Kim White, Rachel Cabot and Kevin Bean � in Supreme Court yesterday.
"My client's constitutional rights have been breached," Mr. Diel said yesterday. "He lost the opportunity to compete. Part of the scheme was to make sure this individual never got promoted."
Both Mr. Diel and Attorney General Chamber's lawyer Melvin Douglas concluded their final submissions yesterday but a decision will not be made for at least two weeks for written transcripts to be prepared.
At yesterday's hearing � which could result in Mr. Caines winning damages of $790,000 � Mr. Diel said Collector of Customs Winifred Fostine DeSilva, along with the Public Service Commission (PSC), the Department of Human Resources and the Minister of Finance, all played a role in ignoring local applicants and recruiting Canadian Joan Crown � who by their own admission did not meet the qualifications.
Mr. Caines did not have the five years management experience sought. However, he said Ms Crown did not have the required educational requirements, or job experience, as a job required a business or management science degree, while Ms Crown had an English/Italian degree.
"The local advertisement left out the word equivalent, but in the Canadian advertisement the word creeped in," he said.
However, Mr. Douglas argued that "equivalent" meant any bachelor's degree, not as Mr. Diel put it, a business or management science degree from Canada.
"Put another way, they bent the rules one way but weren't prepared to bend them the same way for my client," Mr. Diel said. "At best the advertising process was an embarrassment. It's 100 percent batty."
In addition, Governor Sir John Vereker released two fiats at the request of PSC to limit the amount of information available for the Human Rights panel, he said.
He argued an adverse inference should be drawn against PSC as it meant Mr. Caines was denied a fair hearing � particularly when his side gave all of their information to Mr. Douglas.
Mrs. Fostine DeSilva gave a "tacit acquiescence" to this manoeuvre, he said.
"She did not go to the Governor and plead for him not to do it," he said. "I accept the Collector could not disclose documents to clear her name after the fiat was issued.
"You preferred a Canadian over us in circumstances in which she didn't have the experience and neither did we but you preferred her," he said. "It's a fair inference to say PSC went to the Governor to avoid disclosing material."
Mr. Caines refused to sit an exam for the Principal Customs Officer position on the advice of his lawyer, he said, because had he failed it could have been used against him.
Mr. Caines is seeking damages of $790,000 for the difference in salary in both jobs until retirement.
However, Mr. Douglas argued that none of the respondents were Mr. Caines' employer and, therefore, the complaint had no legal basis.
"You could make the argument the Governor was his employer," Mr. Douglas said.
But if this were so, Chairman Kim White asked Mr. Douglas whether there was a conflict of interest by the Governor being allowed to issue a fiat in relation to a person he "employed."
Mr. Douglas said it was a moot point.
He accepted there were discrepancies in the advertisements but said there was no evidence of the PSC "lobbying" the Governor to conceal information.
"If you look at the fiat it used the word waiver," Mr. Douglas said.
He said it was not a PSC cover-up and there was no evidence at the fair hearing that Mr. Caines was more qualified than Ms Crown.
"He competed for the post but he was not successful, so he did not lose an opportunity," he said.
However, he admitted that some members of the public would see that justice had not been done, because of the fiat.
