Blind justice

The National Environment and Planning Agency’s (NEPA) defence for why it forced an employee to retire more than two years ago because of his blindness has crumbled, after the Ministry of Health and Wellness ordered a medical examination of the man.

NEPA officially sent home Kojo Dawes, 63, in April 2019, on the basis of a recommendation it said it got from the ministry that the property and transportation officer be retired on medical grounds.

However, Dawes has been fighting the way he was treated in the Supreme Court, arguing that the procedure used by NEPA and the ministry was unfair and discriminatory.

In a major twist on Thursday, the Supreme Court was advised of a decision that Chief Medical Officer (CMO) Jacquiline Bisasor-McKenzie communicated to NEPA’s outgoing CEO Peter Knight.

“In view of the objections raised by Kojo Dawes … concerning the decision not to convene a medical board and the recommendation that Dawes be retired on medical grounds, a medical board is hereby appointed to facilitate examination of Dawes,” the CMO wrote to Knight on November 8, three days before the court hearing.

Along with suggesting that Dawes is being viewed as a current government employee, the CMO’s letter undermines NEPA’s sole reason for taking action against the man who worked with the agency for over 27 years.

In an affidavit, government lawyer Ricardo Maddan said as a result of that directive, there was no longer a case against the ministry.

Dawes sued both NEPA and the Health Ministry and last year was granted permission to have the decision against him go for judicial review.

After the update from the ministry, Justice Kirk Anderson, who heard the matter in chambers, suggested that both NEPA and Dawes have further discussions, and likely come to a settlement.

STEP IN THE RIGHT DIRECTION

Dawes said he was happy about last week’s development because for him, the ‘principle’ of fair treatment is important and NEPA and the Ministry of Health and Wellness must be held accountable for their actions.

“I’m not antagonistic to them; I’m not hating anybody or upset with anybody. I just want them to realise that they cannot treat people like that,” he said from his veranda in St Andrew on Friday.

“It’s been very hard. I lost a lot of confidence when I was told to go home and it built back slowly,” said Dawes, a dialysis patient, who added that “if it wasn’t for my wife who stuck with me right through I am almost sure I would be homeless.”

Dawe’s attorney, Nastassia Robinson, was more cautious, only noting that the development was an important point for the case.

“It’s a step in the right direction and now it is for us to wait or have discussion with NEPA on what their next move will be,” she said.

Dawes lost his sight on April 20, 2016, owing to diabetes and hypertension complications.

However, he said he was still carrying out his duties as property, transport and security officer, which included monitoring and assessing NEPA’s assets, such as beaches, and filing reports.

Almost three years later, on January 21, 2019, Knight, and Karlene Hamilton-Reid, human resource director, advised him that NEPA was accepting the ministry’s recommendation and that his retirement would take effect on April 1, 2019.

NEPA had requested that the ministry set up a medical board in August 2018 to assess Dawes.

Under the Government’s Staff Orders, a public servant can be asked at any time to submit to an examination by a medical board established by the chief medical officer in the health ministry “if it appears that the officer’s state of health warrants such an examination”.

The CMO can forgo using the board if satisfied with the information coming from the requesting government department.

Regarding disability, the Staff Orders said “its nature, when it occurred and all relevant circumstances should be stated”.

However, during the court hearing in 2020 for the application seeking judicial review, Dawes’ lawyer contended that no medical board was established and that her client was not asked to submit to a medical examination.

Dawes was retired based on a medical report from Dr Lizette Mowatt, his ophthalmologist, which did not state that Dawes was incapable of continuing his employment, she argued.

“Based on the medical report from Dr Lizette Mowatt … it is recommended that Mr Kojo Patrick Dawes be retired on medical grounds, effective December 21, 2018,” was all that was stated by Dr Naydene Williams, who was acting for the CMO on medical boarding issues at the time.

However, in her letter, Dr Mowatt noted that, although it was unlikely that Dawes’ vision would improve, he had adapted well and could continue working with support.

“Due to his significant experience with his work, he appears to be managing, but could benefit from low vision aids to assist functionality at work,” Mowatt wrote on September 14, 2018.

UNFAIRLY TREATED

Robinson further said that the only reason Dawes was dismissed was because of his blindness because, up to December 2018, his appraisal scores were over 90 per cent, there were no complaints against him, and that the environmental protection agency did not even try to reassign or redeploy her client.

The judge concluded that there was no medical report; the case had a realistic prospect of success and that “proper procedures were not followed … and that he (Dawes) was unfairly treated”.

“The applicant has also made out an arguable case … that he was not offered the option to be reassigned or redeployed,” the judge further said.

Justice Henry-McKenzie also noted that: “It is well recognised that the principles of natural justice must be observed and persons who are directly and personally affected by a decision must be kept informed and must be given the opportunity to be heard.”

The case gave force to arguments by advocacy groups like the Combined Disabilities Association, and Conrad Harris and the Jamaica Society for the Blind, which contended that the long wait for the Disabilities Act to take effect meant Dawes was deprived of using it to his benefit.

Last month, Labour and Social Security Minister Karl Samuda said the law, which was passed in 2014, will come into effect on February 14, 2022.

Among other things, the Disabilities Act mandates that no employer should discriminate against a person on the grounds of disability if the person is qualified for the job. It also makes provision for employers to make efforts to redeploy a person with disability before any dismissal.

editorial@gleanerjm.com