The Grand Court will review a dispute between the Ministry of Education and the Civil Service Appeals Commission involving a situation where a non-Caymanian was hired to be the ministry’s human resources director over a Caymanian who says she was similarly qualified.
This information was made public at a hearing Tuesday for the case, where Justice Ingrid Mangatal noted that the ministry’s application for a judicial review hearing was accepted by the court in May. Court records previously not available at the Grand Court Registry were also provided at the hearing, shedding more light on the dispute that has been taking place behind the scenes for more than a year.
In September 2017, after the non-Caymanian was hired to be the ministry’s HR director, the Caymanian applicant took her case to the Civil Service Appeals Commission, arguing that the ministry had “acted unfairly or in a biased manner” in making the hiring decision.
On Dec. 20, 2017, the appeals commission, chaired by former Deputy Governor Donovan Ebanks, agreed that there was evidence that the ministry “acted unfairly toward the [Caymanian job applicant] during the selection phase of the recruitment process.”
The commission ordered that the Caymanian applicant be offered the post as of Feb. 15, 2018, and that she receive additional compensation for pay she would have received if she had been hired for the human resources job at the date it was first awarded, in late September. The appeals commission also ordered that the non-Caymanian be removed from his position, effective Feb. 14, 2018.
In its decision, the commission expressed “disappointment in [former Education Ministry Chief Officer Christen Suckoo] for failing to acknowledge or reply to the request of the Commission to provide a detailed response answering the allegations made in the [Caymanian’s] submissions.” The commission stated that it sent an email and made two calls to the office of Mr. Suckoo – who has since been transferred to the Utility Regulation and Competition Office (OfReg) – but never received a response.
However, Mr. Suckoo claims in a judicial review application against the orders that he did not see the email sent to him until he received a copy of the commission’s decision on Dec. 21. He also said he checked his voicemail and did not find any messages from the Civil Service Appeals Commission, according to the judicial review application.
“The notice of appeal, the appeal bundle, and related documents ought to have been served on the Ministry by leaving a hard copy with the Chief Officer at his offices or by service upon the Chief Officer through the post,” the judicial review application argues. “The risk of an email going unseen is too great and, as in this case, causes uncertainty.”
At a hearing on Tuesday, Kirsten Houghton, who is representing the Civil Service Appeals Commission, noted that her client is not a court of law, and therefore is not bound by Grand Court rules when it comes to serving documents. This argument was not developed in detail, as Tuesday’s hearing was just for case management.
But even without Mr. Suckoo’s response, the Civil Service Appeals Commission still should not have made the ruling in favor of the Caymanian, the judicial review application argues. This is because the commission still should have considered the ministry’s interview panel report, which noted that the Caymanian did not have the required experience in managing large HR teams or an in-depth knowledge of budget management – in contrast to the non-Caymanian, who had such experience, according to the application.
“The Director of HR for the Ministry must be capable of managing the entire HR function, with all of its complexities in the largest Ministry of the Government, placing that person ultimately in a position to be responsible for recruitment, strategic HR and operational HR for over 1,000 staff and managing a core team of 9 employees,” the application states, adding that removing the current, non-Caymanian HR director from his post would amount to a breach of contract, which would have “significant legal and financial implications, since the termination would be without cause.”
“[The commission’s] order that the contract of employment with the [non-Caymanian] be rescinded … was so outrageous in its defiance of logic and of accepted legal standards that no sensible person who had applied his mind to the question to be decided could have arrived at it,” the Ministry of Education argued in its judicial review application.
For these reasons and more, the Civil Service Appeals Commission’s decision and orders should be quashed, the ministry argued.
At Tuesday’s hearing, dates were set and the parties involved in the dispute were determined. For example, Justice Mangatal said the position of chief officer – not Mr. Suckoo as an individual – should be a party to the case.
The Caymanian’s attorney, Natasha Bodden, also said she intends to file an application for judicial review on behalf of her client. That application will seek to force the Ministry of Education to implement the Civil Service Appeals Commission’s orders.
Ms. Houghton said that to her knowledge, this is the first time a chief officer has not implemented a decision by the commission.
Justice Mangatal ordered that the Caymanian’s judicial review application should be filed by Monday. If that judicial review application is also accepted, both cases will be heard concurrently, she said.
“This is an unusual situation in which you have a government entity or officer challenging the decision of another government set-up entity. Ordinarily, a judicial review is for the citizen to be protected against excesses of government,” the justice stated.
Justice Mangatal encouraged the parties to reach a settlement in the matter, but Crown counsel Anne-Marie Rambarran said this would be complicated given that the current ministry HR director is already under contract.