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Judge denies ministry’s bid to have civil case thrown out

Assistant Justice Jeffrey Elkinson (File photograph)

An attempt by a government minister to have a civil court summons thrown out has been dismissed.

The Minister of Public Works applied to strike out a writ filed by Calvin Simons, who claimed he lost out on a promotion in the Department of Works and Engineering.

Lawyers for the Government argued that the claim disclosed “no reasonable cause of action”.

The minister also claimed that the legal action was “scandalous, frivolous or vexatious” and an abuse of process.

Assistant Justice Jeffrey Elkinson outlined Mr Simons’s claim in his ruling.

It said the plaintiff was a Class 1A tradesman employed by the minister in works and engineering.

Mr Justice Elkinson added: “He has worked there for 31 years with a secondment for nearly five years at the Transport Control Department.

“He acted as the depot foreman in 2012 for a period of six months.

“Over the years, the plaintiff has upgraded his qualifications and gained additional certifications which, as are set out in the statement of claim, he says were appropriate to qualify him to apply for the post of the depot foreman when this was advertised in April 2019."

The judge added that Mr Simons argued that “at all material times he met the minimum requirements for the post of the depot foreman”.

He said: “He was shortlisted for an interview which was held on July 24, 2019 and on August 15, 2019 was notified that his application had failed.

“It appears that subsequent to this, the position of depot foreman, while still existing and unfilled, is no longer funded and another employee is presently doing similar work to that which the depot foreman would have done.”

Mr Justice Elkinson added that a breach of contract claim made by Mr Simons related to the collective bargaining agreement between the Government and the Bermuda Industrial Union.

He highlighted an article in the agreement which said that vacancies in senior positions should be filled by promotion of employees, as long as the necessary qualifications are met.

The judge said: “It is the plaintiff’s case that this term from the collective bargaining agreement is incorporated into his employment contract.”

He added that Mr Simons also said he had an auto-engineering certificate but was not receiving the associated $1.52 an hour premium.

Mr Simons, who was represented in court by Craig Rothwell, of law firm Cox Hallett Wilkinson, claimed for the loss of the premiums, the money he would have earned from promotion and “that generally he has lost the benefit of increased earnings and overtime opportunities”.

He also asked for an order that he be appointed to the depot foreman post.

Mr Justice Elkinson said: “It is clear that the power to strike out is a draconian remedy and should only be employed in clear and obvious cases where it is possible to say at an interlocutory stage and before full discovery that a particular allegation is incapable of proof.”

He found that “there is nothing on the face of the statement of claim which could properly be termed scandalous, frivolous, vexatious or otherwise an abuse of process”.

Mr Justice Elkinson said in the ruling, issued earlier this year, that it was “inappropriate” to file evidence in support of the strike out application.

He explained: “Four affidavits were filed, two on behalf of the minister and two in response from the plaintiff.

“Those affidavits simply rehearsed the positions of the opposing parties – there is dispute as to whether Mr Simons was qualified for the post, what the explanation is as regards management’s decision not to fill the post and why the certifications which the plaintiff has were not sufficient to meet the requirements of the post.

“All these issues are appropriate for trial and not for an application for the exercise of a jurisdiction which is to be sparingly exercised.

“This is not a plain and obvious case for strike out as, on its face, the statement of claim discloses a reasonable cause of action.”

Mr Justice Elkinson said that Tanaya Tucker, of the Attorney-General’s Chambers, who represented the minister, argued that Mr Simons’ claim was an abuse of process “because no cause of action can be taken by a member of the union to enforce a term of the collective bargaining agreement”.

He ruled that a provision in the case law relied on by Ms Tucker “did not impede the legal argument available to the plaintiff that certain terms contained in a collective bargaining agreement can be implied into an employment contract which terms can then be enforceable as being terms of his or her employment contract.”

The judge made it clear that it was "not necessarily the fact“ that CBA terms were incorporated in Mr Simons’ contract.

He added: “The court was not provided with any information about all the terms of employment under which the plaintiff was engaged.”

Mr Justice Elkinson said: “I find that none of the grounds relied upon by the defendant for the strike out application have any merit.”

The strike out arguments were heard in July but a copy of the reasons for the ruling was seen by The Royal Gazette only this month.

It is understood the case will be back in court early next year.

The action was raised against the public works minister in an official capacity.

The post holder at present is Lieutenant-Colonel David Burch.

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