Judge: Process unfair

Employees have right to be heard when transferred

DESPITE the permanent secretary’s power under the Constitution to transfer a civil servant, an employee has a right to be heard if he is to be transferred to another place of employment, the Employment Relations Court has ruled.

Kailash Pillay had requested the Ministry of Education in March of 2016 that his transfer to the Southern Division from Nadi be rescinded because his wife was about to give birth and he was about to start the construction of his new home.

“The power of the permanent secretary to determine the transfer is not subject of this grievance.

No one refutes that that power exists,” said Justice Anjala Wati in her January 26 ruling.

“What can be and is questioned is whether the permanent secretary has acted properly, fairly, humanely and not arbitrarily in making a decision to transfer the employee.

“Even if the employer did not know about the wife’s pregnancy, it was made aware of it when the worker appealed the decision to transfer. Why was the decision not considered?

‘The employee has a right to be heard if he is to be transferred to another place of employment.”

The court said there was no fairness in the process.

“The employee was not given 28 days written notice of the transfer or an opportunity to state his or her views about the transfer and his views when expressed by him was not considered by the employer,” Justice Wati stated.

“It is the prerogative of the permanent secretary to determine whether the transfer of the worker is necessary and whether it is fair to transfer him to a place that the employer has in mind.”