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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