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Lawyer loses main battle with governor

Former Governor Boyd McCleary

Former Governor Boyd McCleary

Former Crown Counsel David Penn, whose service at the Attorney General’s Chambers was terminated last year after he stayed away from his workplace for a period longer than 10 days without the necessary permission, has lost the major part of his case against the Office of the Governor.

Handing down judgment in the High Court last month, Justice Nicola Byer ordered that Penn should also refund a portion of the money the government had spent for him to undertake legal studies, considering that he had broken a related bond which requested him to work with the government for at least eight years after studying law.

Penn, who only worked for five of the years stipulated, ended up in trouble when he breached the Service Commission’s Act 2011, by not showing up at his workplace for more than 10 straight days.

The breach committed is in relation to Section 22 of the Act, which reads, “Unless declared otherwise by the Governor, an officer who is absent from duty for a continuous period of 10 working days without reasonable excuse, shall be deemed to have resigned from the relevant service and thereupon his or her office becomes vacant and the officer ceases to be an officer when he stayed away from the job for a period in excess of 10 days.”

The court found that, during his absence from his workplace, Penn did not get the relevant permission from his superiors in the Attorney General’s Chambers.

In his defense, however, he argued that he worked from home instead of the office because his workplace was close to a cellular antenna, and he had been assessed as being “Electromagnetically Hypersensitive” since 2007.

Said the court, “The Claimant (Penn) submitted that this hypersensitivity made it extremely difficult for him to work from his office for any extended period of time due to the great pain and discomfort experienced, and affected his health due to the fact that his workplace and space were in close proximity to certain cellular antennae. The Claimant therefore commenced working from home periodically without the requisite permission.”

Penn versus Governor

Acting on the advice of the Judicial and Legal Services Commission, then Governor Boyd McCleary, in June of last year, recommended that Penn’s service at the Attorney General’s Chambers be “terminated”.

Penn, through his attorney Terrence Neale, however argued that the Governor was either guilty of an error of law, or that he had failed to follow the proper procedure.

The attorney further argued that the law does not give the Governor the power to “terminate” Penn’s employment, adding that the Governor only has the power “to make a declaration in terms of the deemed resignation for [Penn’s] failure to attend his post for a period in excess of 10 days”.

On those grounds, Penn tried to have the court quash the Governor’s decision to ‘terminate’ his employment.

Disagreeing with that position, however, Justice Byer said: “The order seeking the quashing of the decision of the Respondent (Governor) to terminate the Claimant’s (Penn’s) employment is refused.”

Justice Byer also refused Penn’s request for a declaration that he was not in breach of his Study Leave Bond.

“The Claimant shall be responsible for the value of the remaining portion of the Bond for the period 2013 to 2016,” added the High Court judge.

However, the court has ruled against the governor’s order that any vacation leave that Penn may have accumulated has been forfeited. “The order seeking the quashing of the decision of the Respondent (governor) to forfeit the Claimant’s (Penn) vacation leave is granted,” said the judge.

She added that Penn is entitled to his leave as accrued up to the date of the termination of his employment, which is June 20, 2013.

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14 Comments

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  1. son on the soil says:

    Poorly-rated. Like or Dislike: Thumb up 2 Thumb down 16

    Hidden due to low comment rating. Click here to see.

  2. ?? says:

    Well-loved. Like or Dislike: Thumb up 6 Thumb down 2

    That man must be —. LMAO!

  3. Wait. says:

    Well-loved. Like or Dislike: Thumb up 19 Thumb down 3

    His entire house is one big magnet. He drives to town beneath high tension wires/’an electricity grid that isn’t underground’; town itself is a giant EMF wit all of the buildings in close proximity; the vehicle he drives is an EMF generator. I am assuming e doesn’t own a TV or microwave. SMH.

    What a load of crock. Sounds like… Get off your high horse boss – you aint make yourself.

  4. wait a minute sweet tooth says:

    Like or Dislike: Thumb up 1 Thumb down 1

    dup a dup lalal oooooooh snapppp you ___ woohoo who got money

  5. Martin Weatherall says:

    Hot debate. What do you think? Thumb up 4 Thumb down 6

    The judge has made a very serious error by referring to standards set by the International Commission of Non-Ionising Radiation Protection. The judge should have been aware that this is a private group that was set up by the wireless industry, comprised of industry insiders, to protect the industry and to set standards which suit that industry. The group is ignoring all the masses of scientific evidence which show that serious biological effects are occurring at much lower levels than their standards.

    A good comparison to this would be if the judge accepted cigarette industry claims that it was quite safe to smoke 100 cigarettes a day, whilst masses of scientific evidence suggested that serious harm is happening at much lower levels. The Judge should have looked closely at the scientific evidence which shows harm occurring at very low levels of microwave radiation.

    The judge also erred by referring to the World Health Organisation, stating “The evidence which he has put before the court demonstrates that this is not a medical disorder recognised by the World Health Organisation” . The judge should be aware that the WHO was so concerned about this new illness that they held a conference to discuss it – http://www.who.int/peh-emf/publications/reports/EHS_Proceedings_June2006.pdf (EMF International Workshop on EMF Hypersensitivity, Prague, Czech Republic, Oct 25 – 27 2004). There are several knowledgeable doctors in the field of environmental health who are presently diagnosing patients with electrical hypersensitivity.

    It would appear that there has been a serious miscarriage of justice and more accurate information needs to be placed before the court!

    The judge further erred by referring to a study by TRC of 21 cell phone towers which stated that – radiation levels being emitted were far lower than the maximum allowed by international standards. The standards the judge refers to are not safe and there are several mast studies from around the World which show that serious harm is occurring to people who live closest to them – http://www.mast-victims.org/index.php?content=who , even though the exposure levels are much lower than the ICNIRP safety levels.

    There are many people around the world who have developed electro hypersensitivity, and in particular, a serious allergic reaction to wireless microwave radiation from cell phone masts and Wi Fi.

    Would you force a person with a peanut allergy to eat peanuts all day? or a person allergic to shellfish, to continually eat shellfish? It is a form of torture to subject a person with electro hypersensitivity to be continually exposed to wireless radiation. The dangers are well known and have been extensively researched for more than sixty years. Go to this site to learn about the scientific evidence showing that it is severely harming people – http://www.bioinitiative.org

    • Questionable says:

      Poorly-rated. Like or Dislike: Thumb up 0 Thumb down 4

      Hidden due to low comment rating. Click here to see.

    • Ajic says:

      Like or Dislike: Thumb up 1 Thumb down 1

      Well said. Years ago people were saying tobacco did no harm and they scoffed at the idea that tobacco smoke was killing people. Now today they are singing a different tune. Do not discount this gentleman’s claim. Eveybody body is made up differently. Some people are very sensitive.

    • Missing the point says:

      Well-loved. Like or Dislike: Thumb up 5 Thumb down 0

      You guys are missing the point, the case at hand is that he staid away from his place of employment for more than 10 days without informing his superiors.

  6. Flamingo says:

    Well-loved. Like or Dislike: Thumb up 17 Thumb down 0

    Regardless of any real or imagined illness resulting from exposure to cell towers or other sources of radiation all over the island, that does not excuse a protracted unapproved absence from work at the taxpayers’ expense.

  7. hhhmmmmm says:

    Like or Dislike: Thumb up 0 Thumb down 0

    So one should show up to work and dead from the effects of what is happening based on 10 days leave i am sure contact had to be made with the boss or person in charge. The way i see it we value opinion but do we really. Persons going to wait until this little islands start getting violent and one start taking matters in their own hands before we start to listen. God for us all.

  8. Nocebo effect says:

    Well-loved. Like or Dislike: Thumb up 5 Thumb down 0

    Sort of like WiFi Syndrome.

    There was an MIT under grad study done a few years ago on the Effects of WiFi on people with WiFi sensitivity. They had a WiFi generator that had antennas, dials and blinking lights. The generator was always positioned behind the test subjects so they could not directly see if it was on or off. However, there were enough reflective surfaces on the opposing wall so the the subject could tell when it was on or off. When the generator was brought in the room and and turned on the subjects felt the effects. When it was turned off and or removed from the room the subjects felt much better.
    The machine did nothing.
    The ceiling of the room was loaded with active WiFi base stations that were on all the time during the tests yet the subjects only reacted when the fake WiFi generator was turned on and in the room.

    Also in Australia: There was a more similar case where people were complaining about a mobile phone tower making them sick. They ran off a long list of complications. Turns out, the tower was not in operation, it was still pending connection.

  9. need more vision says:

    Like or Dislike: Thumb up 0 Thumb down 0

    well saw another message for the king.

  10. ABC says:

    Like or Dislike: Thumb up 2 Thumb down 0

    This Judge should be careful. If I know this young man he wouldn’t think twice about sueing [her/him] for a million. Never mind he doesn’t stand a ghost of a chance.

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