Equal Opportunity Tribunal (EOT) lay-assessor Veera Bhajan has been given the green light to pursue her lawsuit against the EOT and its Chairman Donna Prowell-Raphael over alleged moves to block her from taking up her appointment.
During a virtual hearing, yesterday morning, High Court Judge Avason Quinlan-Williams granted Bhajan leave to pursue her judicial review case over the issue. According to her court filings, obtained by Guardian Media, the issue arose after Bhajan received her appointment from President Paula-Mae Weekes on March 17.
Bhajan claimed that she made numerous attempts to contact the tribunal in order to take up her appointment before Prowell-Raphael responded on May 19. In the correspondence, Prowell-Raphael claimed that her services were not required as the tribunal did not have the “financial wherewithal” to accommodate a second lay-assessor and that the tribunal’s current workflow did not require it. Prowell-Raphael also accused Bhajan of using improper channels to enquire about her position.
In a legal opinion issued by the tribunal’s legal research officer Mintri Beharrylal on August 26, the tribunal departed from its initial reasons and claimed that the President was wrong to appoint Bhajan, as she (Bhajan) did not have sufficient qualifications for the post as required under the Equal Opportunity Act (EOA). Beharrylal claimed that when Bhajan was first appointed, Prowell-Raphael informed the President that she (Bhajan) did not qualify for appointment as she did not have the prerequisite of 10 years experience as an attorney. She claimed that after the communication, the President revoked the appointment and reappointed Bhajan based on having combined experience in law and social work for 10 years. She alleged that Bhajan still did not qualify under combined experience. The opinion also stated that Prowell-Raphael had a legitimate expectation to be consulted by the President before the appointment and would have pointed out deficiencies in candidates.
Through the lawsuit, Bhajan is seeking a series of declarations against the tribunal and Prowell-Raphael that they acted in excess of their jurisdiction and in abuse of their power. She is also seeking an order quashing the decision and another mandating that she take up the appointment.
Bhajan, who is claiming that she quit her law practice to take up her appointment, is also seeking compensation for the monthly remuneration she was supposed to receive after being appointed.
While the Office of the Attorney General was listed as a respondent to Bhajan’s claim, it supported her legal action when her attorney Rajiv Chaitoo wrote to it before filing the lawsuit.
“It appears that having regard to the legitimacy of the claims advanced by your client, we accept that Ms Bhajan was entitled to be appointed and to be paid from the date of the appointment, thus leaving any further defence of the actions of the Chairman, solely at the behest of the Chairman,” attorney Sarah Sinanan said in the response from the Attorney General’s Secretariat.
The AG’s Office said that it could not rectify the situation as it had no power over the tribunal or Prowell-Raphael.
“Regrettably the action which your client complains are not the actions which were taken by the Office of the Attorney General or its agents and which can therefore be revoked by that office,” Sinanan said.
Under the EOA, the tribunal consists of a Chairman and two lay-assessors appointed by the President. While the Judicial and Legal Service Commission (JLSC) advises the President on the appointment of the Chairman, the lay-assessors are selected solely by the President.
The tribunal is mandated to hear and determine discrimination complaints under the legislation, which are referred to it by the Equal Opportunity Commission.
Bhajan, who was born without arms and was awarded the Hummingbird Medal (Silver) in 2011.
She is also being represented by Alvin Fitzpatrick, SC, Rajiv Persad, Michael Rooplal, Shari Fitzpatrick, and Gabriel Hernandez.
Her lawsuit is expected to come up for case management on October 1.