Judge slams public service’s archaic methods

THE State has been ordered to compensate a senior public servant for a 16-year delay in classifying her leave.

Justice Frank Seepersad made the order on November 11.

Marsha Mungal will receive $250,000 for the breaches of her rights.

Seepersad also ruled Mungal was treated unfairly when the Ministry of Labour failed to deliver a appointment letter for a position at the Energy Ministry within a reasonable time, affecting her career path.

Mungal received the letter five years after the Public Service Commission (PSC) made the appointment.

“If the claimant had been notified and had she assumed her position at the Ministry of Energy and Energy Industries, her seniority and eventual entitlements at the said ministry would be very different from what they currently are,” Seepersad said.

He said $150,000 would adequately compensate her for the effect the delay had on her pension benefits.

In deciding the case, Seepersad also said the unexplained delay “instilled significant disquiet in the court’s mind and the maladministration which has been revealed must attract and reflect public outrage.

“The delay was egregious and the importance of the right to protection of the law must be emphasised.”

It was for this reason he awarded her $100,000 in vindicatory damages.

Mungal was a health and safety officer with the Factories Inspectorate Unit under the Labour Ministry. This unit was disbanded when the Occupational Safety and Health (OSH) Act was proclaimed and the OSH Agency was established. The act was proclaimed in February 2006.

From October 2006, Mungal had repeatedly applied for no-pay leave “on the grounds of public policy” so that she could take up contract positions with the OSH Agency. She received approval.

In May 2014, when she learned her position had not been abolished, she applied for a position with the Ministry of Energy and Energy Industries as a mechanical engineer. She had been advised to apply for a lateral post in the public service.

In December 2015, the PSC, by letter, appointed her mechanical engineer I (Range 53) at the Energy Ministry, effective from July 1, 2014.

However, she only received that letter in May 2019.

In her lawsuit, Mungal said because she did not get the letter, she continued to take up contract positions with the OSH Agency.

She said she was reassured she had permission to take up these contract positions.

In 2022, Mungal’s leave was still classified as leave of absence without pay to facilitate employment on contract.

In deciding the case, Seepersad said, “Bearing in mind that the positions in the FIU were abolished with effect from June 30, 2014, it is clear that the Public Service Commission intended to continue the claimant’s tenure and service in the public service and hence the reason her appointment as mechanical engineer I took effect from July 1, 2014,the next working day.”

He said based on the facts, Mungal received contradictory assurances from the Labour Ministry on her service.

“The evidence clearly demonstrates that, at all material times, the claimant acted under the apprehension that her contract at OSH would not affect her unbroken tenure in the public service.”

Seepersad also said the evidence showed Mungal remained a public servant and described as “ludicrous and absurd” the ministry’s contention that she stopped being its employee after her first period of leave.

“The claimant has suffered severe and unfair prejudice due to the maladministration, delay and/or inaction which occurred.

“There was a failure to properly address the reclassification of her leave and there was significant delay in the delivery of her appointment letter to Ministry of Energy and Energy Industries.

“In the circumstances, the course which was adopted breached the principles of transparency and fairness.”

He further held Mungal was “kept in a state of ignorance” about her tenure in the public service.

“The claimant’s attempts to obtain clarity through multiple FOIA (Freedom of Information Act) applications and threats of litigation highlight the secrecy and bureaucratic stonewalling which was employed.

“This lack of transparency and the failure to provide her with clear guidance as to the procedure for no-pay leave on the grounds of public policy further reinforces that she was subjected to unfair and irrational conduct as she was lured into having a false sense of security based on the assurances which were given by the Ministry of Labour’s representatives regarding her leave status.”As he critcised the State’s conduct, Seepersad said the unreasonable delay amounted to a “serious breach of statutory duty and an unlawful abdication of the State’s responsibilities, duties and mandate.”

He added, “Sixteen years elapsed since the claimant first raised concerns regarding her leave classification and she received her letter of lateral appointment four years after the said letter was penned.

“The defendants patently failed to explain the delay and inaction which occurred and the approach adopted by the Ministry of Labour after the decision was taken to dismantle the FIU was unacceptable and lethargic and stands as an affront to proper administration.”

Yet again, he said, “Administrative deficiencies have been laid bare before the court.

“The archaic manner in which many ministries and governmental agencies operate demonstrates a decided disconnect and detachment with modernity. There is a restricted flow of information and the efficient delivery of core services has not been prioritised.”

Seepersad said immediate public-sector reform was urgently needed.

“And until this radical exercise is engaged, the court would have to constantly correct the casualties of a crippled public service.”

Anand Ramlogan, SC, Jayanti Lutchmedial, Kent Samlal, Natasha Bisram and Jared Jagroo represented Mungal. Representing the Ministry of Labour and the Attorney General were Nicole Yee Fung, Gayatri Dass, and Krysta Jalim.

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