Gov’t lawyer loses legal fight over non-promotion
Published:Friday | January 10, 2025 | 12:10 AMTanesha Mundle/Staff Reporter
A lawyer employed to the Attorney General’s Chambers (AGC), who claimed that he was unfairly overlooked for promotion for 10 years, has lost his decade-long battle to overturn a decision by the Public Service Commission (PSC) dismissing his promotion appeal.
In December, the Supreme Court rejected Assistant Crown Counsel Dale Austin’s request for several orders, including the quashing of the PSC’s refusal to promote him to assistant attorney general and the decision by then Solicitor General Marlene Aldred not to recommend him.
“After a careful consideration of the evidence, ... it is our determination that Mr Austin has failed to satisfy this court that he is entitled to the orders sought ... ,” said a three-judge panel comprising Justices Cresencia Brown Beckford, Tricia Hutchinson Shelly, and Tara Carr.
Austin, who began as a temporary assistant Crown Counsel in October 2011, has had a contentious relationship with the AGC since his termination in March 2012 due to indebtedness. His termination was quashed in 2018 after a judicial review.
In March 2020, Austin applied for the assistant attorney general post but was informed by Aldred that he would not be recommended for promotion as he had the lowest grades of all candidates. He appealed to the PSC, but they found that his appeal lacked merit.
ARGUMENT
Austin, represented by Hugh Wildman, filed a judicial review application in 2022, and the hearing took place in March 2023. He argued that his constitutional rights were violated, and he sought damages, special damages, and several administrative orders. He claimed procedural irregularities and wrongful exercise of power by Aldred.
Austin further argued that he was the longest-serving member of his division, had exceeded performance targets, and that 63 promotional vacancies had arisen over the years. He also claimed that the PSC failed to provide him a fair hearing regarding his promotion.
The defendants countered that they had not engaged in unlawful behaviour and highlighted that Austin had only formally applied for two positions: one in 2019, in which he was shortlisted, and the 2020 post, the subject of this case.
The court found that the lack of promotion did not “equate to irrationality or unreasonableness” on the part of the PSC or Aldred, noting that eligibility for promotion alone was insufficient to establish an entitlement. They also found no evidence of bias or inequality in Austin’s treatment during the promotion process.
“In fact, the evidence is that Mr Austin has been treated favourably in the process as despite having a failing grade on the assessment, he was advanced to the interview stage,” the judged noted.
The judges concluded that Austin was not entitled to damages as there was no breach of his constitutional rights. Despite the adverse ruling, they did not impose a cost order, believing that Austin did not act unreasonably in bringing the matter to court.
King’s Counsel Garth McBean and attorney Dian Johnson represented the PSC while King’s Counsel Allan Wood and Daniella Gentles-Silvera KC, along with Analeise Minott, represented Aldred and the attorney general.