A black Bermudian airport Customs officer has appealed a tribunal decision that ruled discrimination played no role in him failing to be promoted.

Troy Caines claims he applied for the Assistant Collector of Customs position, but was denied the promotion because of his country of origin and race.

He took the matter to the Human Rights Board of Inquiry in 2002 when a white Canadian woman, Joan Crown was hired. The tribunal began in October 2005.

In October 2006 after hearing from witnesses, the panel ruled that there had been no evidence of discrimination and threw out the complaint against Collector of Customs Winifred Fostine-DeSilva, the Public Service Commission (PSC), the Department of Human Resources and the Minister of Finance.

However, Mark Diel, lawyer for Mr. Caines, yesterday submitted that the problem was that the documents held by the PSC which could receive recommendations from Ms Fostine-DeSilva, were unavailable.

In 2005, the Governor had made an order that any documents held by the PSC on Mr. Caines' matter could not be released.

Mr. Diel argued that this order three years ago, had failed to give his client access to all of the information necessary for a fair tribunal.

He said: "It prohibits my client from having a fair hearing. The purpose of the fiat was to deny my client documents.

"We didn't look at the deliberations of the PSC or the recommendations made to the Governor. It has all been hidden."

Mr. Diel took further issue with the tribunal in 2006 for not inferring that the decision to order a fiat by the Governor meant there must be adverse remarks towards the respondents made in the "hidden" documents.

Gregory Howard, representing the Attorney General Chambers for the respondents, however, said that the Governor was in his right to a fiat and the order did not imply anything.

He said: "The tribunal understood its restriction. You cannot draw an adverse inference from a lack of evidence from a claim of privilege.

"It's about finding there was unfairness in the process. Asking to draw adverse inferences at most it's (the ordering of the fiat) neutral.

"Neutrality is the inferences on the basis of the evidence or not and the tribunal decided that there was no evidence."

As well as appealing on the concern that adverse inferences should have been made, Mr. Diel also submitted yesterday that Ms Crown was unqualified for the position.

The job position required three things, which were a bachelor's degree in Finance or equivalent, at least five years experience in a senior management position and to be familiar with information technology.

So while Ms Crown had a bachelors of Arts degree in both English and Italian, Mr. Caines had completed his bachelor's degree in Science of Management and his Masters in Business Management Sciences.

Mr. Diel agreed that his client did not have the five years experience in a senior management position, but he argued that Mr. Caines had 19 years as a Customs officer.

If one requirement is going to be waived, then so the other could have been waived for Mr. Caines.

Mr. Howard countered that: "They are both equal in their education. She met the requirements of experience and administration at a senior level.

"Although he might say they waived a requirement it's not that simple. There's a process for setting up what the job description contents.

"He did not meet a requirement. He did not meet the requirement of five years of administration at the senior level.

"So the job was advertised overseas and he acknowledges he did not have enough."

Mr. Howard again raised the contention in the first tribunal that there had been ongoing difficulties between the staff and management that could have led to an employee believing they were being discriminated against.

Mr. Caines had asked for $790,000 in compensation for not receiving the promotion.

In the appeal yesterday, Mr. Diel said they were asking for the verdict to be overturned and returned to the tribunal, which could consider the compensation.

Chief Justice Richard Ground yesterday reserved his judgment for at least a week.