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Firing of childcare worker for drinking on duty upheld by court

The Supreme Court has upheld a decision to fire a childcare worker for drinking on the job.

The Department of Child and Family Services fired Cheyra Bell in February 2019 after Derrick Binns, the Head of the Public Service, found she was guilty of gross misconduct.

Ms Bell had asked the court to quash the decision because the investigation was flawed and she was not given a fair opportunity to respond to the allegations.

But Chief Justice Narinder Hargun found that the case was handled properly, and the admitted facts in the were enough to justify her dismissal.

Mr Justice Hargun said in a decision released on June 3: “The applicant admitted that she had been drinking alcohol while being on duty.

“There was no dispute that she had lied to the investigator when she first stated that she had not had any alcohol whatsoever.

“There was evidence from four individuals who gave statements which were consistent with one another which evidenced that the applicant was under the influence and unfit for duty.”

The allegations related to an incident on March 9, 2018 when Ms Bell was a residential treatment services care officer.

Ms Bell and a colleague transported two clients to the Cornerstone Youth Group.

An investigative team with the DCFS said that witnesses reported that, when she returned, she was “stumbling”, “speaking loudly with slurred speech” and smelled of alcohol.

Ms Bell admitted that she and her colleague went to the Bermuda Athletic Association clubhouse where she had “two or three” beers while the clients were at the group.

The matter was referred to Dr Binns for a disciplinary hearing, which Ms Bell attended with union representatives.

Dr Binns found that between Ms Bell’s admission of drinking and the reports from witnesses, it could be concluded that Ms Bell was unfit for duty.

She appealed the decision to the Public Service Commission and asked to be reinstated.

A representative from the Bermuda Public Services Union argued dismissal was too harsh a penalty.

But the PSC upheld Dr Binns’s decision and ruled Ms Bell was “under the influence of alcohol while carrying out the duties as a residential care officer responsible for caring and providing services to vulnerable minors”.

Ms Bell, however, brought the matter to the Supreme Court for a judicial review.

She argued the disciplinary hearing was unfair for several reasons, including that no witnesses were called, which meant she did not have a chance to cross examine them.

But Mr Justice Hargun said the legal requirement to hold a “hearing” did not necessarily require an oral hearing with all the witnesses available for cross examination.

He highlighted that neither Ms Bell or her union representatives suggested or requested that witnesses be called.

Mr Justice Hargun added: “If an applicant elects not to raise a particular point before the decision-maker, such as requesting to cross examine witnesses of fact, it would be rare for a court in judicial review proceedings to conclude that the absence of cross examination entailed a breach of the rules of natural justice or fairness.”

He said that other complaints by Ms Bell about procedural irregularities should also have been raised at, or before, the hearings.

Mr Justice Hargun added that many of the complaints were not raised by Ms Bell when she appealed Dr Binns’s decision to the PSC.

He said that Ms Bell was in a “highly responsible position of looking after vulnerable children” and it was reasonable for the incident to be treated as one of gross misconduct.

Mr Justice Hargun added: “It cannot be said that no reasonable authority would have arrived at the same conclusion and it is not for the court to impose its own view as to what it may have done in the circumstances.”