MP Brown “Deeply Alarmed At Flagrant Violation”

June 29, 2015

Shadow Immigration Minister Walton Brown said he is “deeply alarmed at the flagrant violation of immigration laws by a company operating in Bermuda and even more so by the refusal of Home Affairs Minister Michael Fahy to act responsibly and take the sound advice of the Ombudsman, as published in the 2014 Ombudsman’s Annual Report.”

“The Ombudsman called on Minister Fahy to take decisive action to correct the discriminatory treatment of a Bermudian job applicant and he has thus far refused to do so,” Mr Brown said.

“Minister Fahy needs to demonstrate with his words and deeds that Bermudians will be treated fairly when applying for jobs; Minister Fahy needs to demonstrate that companies willfully violating our immigration laws will face serious consequences.

“Minister Fahy needs to provide the public with an explanation regarding his refusal to take the considered advice of the Ombudsman. As the PLP spokesperson on such matters we want to hear from the Minister, we want to know which company is involved and we want to see that company placed on a restricted list as far as work permits grants are concerned.”

In releasing the report recently, the Ombudsman’s office said, “The Annual Report includes a special report regarding a complaint where the Ministry of Home Affairs and the Department of Immigration failed to follow certain Ombudsman’s recommendations.”

The relevant section of the report of said:

It is after much deliberation that the Ombudsman reports the following failure of the Department of Immigration [“the Department”] and the Ministry of Home Affairs [“the Ministry”] to follow the recommendations she made after investigating a complaint against the Department and making findings of maladministration.

In December 2013 a Bermudian Professional [“the Professional”] lodged a complaint with our Office against the Department and the Minister of Home Affairs [“the Minister”].

We investigated her complaint of a failure to give reasons for a decision. She alleged that:

  1. before making an employment application for an advertised post, she notified the Ministry that she would be applying. She was motivated to notify the Ministry by her belief that the employer [“the Employer”] had inflated the experience requirement for the post without justification. A day after making her submission, both the Department and the Ministry were provided with a copy of her application and a letter articulating her concerns;
  2. she was never contacted by the Employer after she submitted her application;
  3. over three months after submitting her application to the Employer, the Department and the Ministry, the Professional was notified by email that a work permit had been approved for the post. The Department stated that prior to the Minister approving the work permit, the Department had sought clarity on whether there were any Bermudian applicants for the post. The Employer stated no Bermudians had applied;
  4. the Employer was asked again and reconfirmed that no Bermudians had applied for the post. The Department suggested that the Professional contact the Employer to discuss what may have happened to her application. The Professional responded to the Department, providing evidence that she had submitted her application before the advertised deadline and that the application had been placed in the Employer’s designated mailbox;
  5. the Department conducted its own investigation into the matter and upon conclusion presented the facts of its investigation to the Minister. The Minister decided not to revoke the work permit; and
  6. the Ministry and the Department did not give the Professional reasons for this decision.

Investigation

We conducted inquiries into the Professional’s complaint and made several findings, including that it is the Ministry’s and the Department’s duty to ensure that its policies are adhered to. This is true whether or not a complainant gives prior warning to them. In this case, the Professional provided information which was received by the Department, but nothing of consequence was done with that information prior to a work permit being issued. In the circumstances, a failure to enquire further of the Professional amounted to maladministration.

Information from our preliminary inquiries supported that the Department conducted its own investigation into the Professional’s complaint. This included the Department’s officers questioning parties associated with the Employer’s application process, but did not include interviewing the Professional. Our inquiries revealed that the Department established that the Employer closed its mailbox one day prior to the deadline for receiving applications. This, if true, appears to be in violation of the advertising guidelines set by the Department; yet no specific mention was made of this by the Department. The Professional was not aware that the Department recommended that the granted Work Permit be revoked nor that the Minister had not agreed with the Department’s recommendation. The Minister gave written reasons for his decision which differ from the findings of the Department. These reasons were not provided to the Professional.

The Ombudsman may inquire into and investigate the adequacy of the information provided to the Minister by the officers in the Ministry and the Department. Prior to the granting of the work permit there is nothing which demonstrates consideration of the information given. The Ombudsman is precluded from looking into the Minister’s administrative decision, including the sources, bona fides or adequacy of the information received from outside the Department, and any reasons of the Minister by virtue of section 2 of the Schedule to the Ombudsman Act. By section 10[2] of the Immigration and Protection Act 1956, the Minister is not required to provide reasons for decisions made under this statute.

Additionally, section 20[2] of the Ombudsman Act requires the Ombudsman not to disclose any information or document received during the course of an inquiry, except in limited circumstances of a breach of duty or misconduct, or in reports to the Legislature or during Court proceedings for offences against the Ombudsman.

We were, therefore, of the view that we were not able to disclose to the Professional the reasons given by the Minister. But for these statutory provisions, we would have concluded that it was our duty to share the Minister’s reasons with the Professional.

Developments in the law are such that giving reasons is now a requirement of natural justice. We cannot say whether a Court would impose a duty to give reasons in this case in the face of express and unambiguous statutory language. Even if a Minister is not obliged to give reasons, where he has actually given reasons and the withholding of these reasons leads to unfairness for an individual, the unfairness should be addressed by the public body by disclosing what the reasons for the decision are3. Acting fairly and proportionately is an established principle of good administration:

If applying the law regulations or procedures strictly would lead to an unfair result for an individual, the public body should address the unfairness4.

The Department’s various responses to our findings and recommendations seek to persuade us that we are mistaken. Some responses are dangerously close to an attack on the integrity of this Office which is wholly inappropriate. If we realise a mistake has been made by us, we are duty bound to acknowledge and rectify it. We have not hesitated to do so. Departments would do well to do the same. We have received no response from the Ministry to our findings and recommendations.

Recommendations

In accordance with section 5[1][b] of the Ombudsman Act, the Ombudsman may make recommendations concerning any administrative action that formed the subject of the investigation. The Ombudsman has made specific recommendations, which focus on addressing the Professional’s specific complaint, and general recommendations, which focus on improving the Department’s administration generally.

Specific Recommendations

1] We recommended that the Department write a without prejudice apology to the Professional for failure to properly process, consider and investigate her complaint prior to the work permit being granted in this case. For the avoidance of doubt, a “without prejudice” apology should be more substantive than mere ‘regret’.

The apology should be copied to the Ombudsman and should articulate:

a] an admission the Complainant was wronged;
b] a detailed explanation of what went wrong; and
c] the steps being taken to prevent a recurrence in the future.

2] We recommended that the Department ensure that it looks carefully at how the Employer conducts itself after the work permit expires.
3] We recommended that the Department provide the Professional with the reasons for making the decision not to revoke the permit. [We are aware that the Department could not do so without the Minister’s agreement.]

General Recommendations

1] We recommended that the Department should review its file management system and instruct officers on appropriate diligence with respect to incoming complaints and appropriate regard given to ensure that complaints are captured and tracked.

2] We recommended that the Department’s “Work Permit and Advertising Guidelines – Advertising and Recruitment Criteria” be amended such that changes to closing dates or changes to application addresses render the advertisement invalid.

Department’s Response

Following the issuance of the Ombudsman’s findings in this matter, we met with the Department. More correspondence between us followed. The Department did not accept our criticism of it as fair because the Minister, as was his right, declined to follow the Department’s recommendation to revoke the work permit following its investigation. We acknowledge that the Department is not responsible for the Minister’s decision. However, it is responsible for failing the Professional by not giving sufficient regard to the information she provided, not adequately addressing her complaint in a timely manner and not ensuring compliance with its policies. We received no correspondence from the Ministry.

By letter the Department wrote to us that it would not be:

  1. providing a without prejudice apology to the Professional; or
  2. providing the reasons for making the decision not to revoke the work permit; or
  3. reviewing its file management system and instructing officers on appropriate diligence with respect to incoming complaints and inappropriate regard to ensure that complaints are captured and tracked.

The Department stated that it will address the remaining recommendations, namely that the Department:

  1. ensures that it looks carefully at how the Employer conducts itself after the work permit expires; and
  2. amends its “Work Permit and Advertising Guidelines – Advertising and Recruitment Criteria” so that changes to closing dates or changes to application addresses would render the advertisement invalid.

The Department has not been provided us with specific information on how it will consider the Employer’s conduct in the future. It advised that the recommendation regarding the “Work Permit Advertising Criteria” had been included already in the Department’s draft Work Permit Policy which was implemented in March 2015.

We draw the public’s attention to the Ministry’s and the Department’s failure to implement the Ombudsman’s recommendations, purposely crafted to address the unfairness to the Professional in this complaint. The Ombudsman has no power to compel a Department to implement our recommendations. This does not mean the Department, the Ministry and other authorities are free to dismiss recommendations they do not like. Accepted principles and legal authority dictate that Ombudsman recommendations are expected to be implemented. This is an integral part of the constitutional oversight of the Civil Service that an independent Ombudsman was established by the Legislature to carry out.

This explains why, when an authority fails to adequately implement our recommendations, we are empowered to reveal this failure to the Legislature and to the public, and further why we have included it in this Annual Report.

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Comments (66)

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  1. pjs says:

    That’s right Walton, stir up more trouble.

    • swing voter says:

      shuddup …. this one is serious, Fahy gave the opposition a free shot at the government this time mud will stick….SMDH poor performance

      • This is nothing new, this has been going on for decades.
        I guess this is the one that DID NOT get away.
        Book him Dano.

  2. What next says:

    Sounds like Immigration did everything correct. Why do they need to follow these steps?

    The apology should be copied to the Ombudsman and should articulate:
    a] an admission the Complainant was wronged;
    b] a detailed explanation of what went wrong; and
    c] the steps being taken to prevent a recurrence in the future

    Sounds like the Minister Fahy did something wrong and should publicly apologies to Bermuda.

  3. serengeti says:

    For a summary of how well the PLP listened to the Ombudsman when they were in power, see the following. Particularly pages 2 and 3.
    http://cloudfront.bernews.com/wp-content/uploads/2012/07/OmbudsmanReport11.pdf

    The Ombudsman also said in 2011 that the PLP government “acted unlawfully” in the Tucker’s Point SDO. The PLP government ignored the Ombudsman.

    But now suddenly Walton Brown is concerned by the “refusal…to act responsibly and take the sound advice of the Ombudsman”.

    I guess when the shoe is on the other foot Walton Brown is prepared to change his mind about right and wrong. No surprise there.

  4. hmmm says:

    Notifying the Ministry before applying for a job is quite unusual.

    • SayItsnotSo says:

      Now we have documented evidence of the much talked about discrimination over many years (20 at least). Still nothing is done. How long are we the people going to allow foreign companies to hire as they wish at the expense of qualified locals? Are we going to continue to take their crap while they thumb their noses at the much maligned local.

      First we were not qualified enough. University trainedin supposedly solved that. Alas it wasn’t the case. Then the excuse was not enough experience. Still after remedying that, another excuse. I believe the latest is poor work ethic or something like that.
      Companies who are saving fortunes by their domiciliation here are not fairly,adequately or equitably compensating, this populace or BDA Inc. who receive their mandate via, ‘we the people’.

      Are ‘we the people’ going to sit or for that matter ‘lay down’ or stand up and take action holding this wonderful govt accountable for their legislative actions that are co-signing off on these egregious and damaging actions perpetrated against locals for so long now.
      Are you going to continue to ‘lay it down’ when it comes to leaving local workers in the corner to collect dust?
      This isn’t àn equitable arrangement. And it’s high time that this damn situation is turned around to where both sides are equally benefitting and not just one.

      • hmmm says:

        Can you give me other examples. From your statement there must be thousands.

    • Scorpio says:

      And seemingly becoming necessary, since we know this isn’t the only company who tosses Bermudian CVs into the nearest trash bin.

  5. Navin Johnson says:

    Not just alarmed he is “deeply alarmed”

    • hmmm says:

      So, when Walton doesn’t say “deeply” he is only mildly bothered?

    • Triangle Drifter says:

      Does that lie somewhere between concerned & appalled?

      • Lets not divert from the main issue here, which is common among the U.B.P cheerleaders.
        This is a serious problem, with hundreds of people unemployed and seeing how this Government is abusing its anti-Bermudian tactics, lets just be thankful that we are a little socially-civil then our cousins to the South of us,(or we are just too SOFT) because by now it would’ve been TROUBLE IN PARADISE.

        • Onion says:

          The PLP were far more anti-Bermudian. This government has taken big steps to strengthen Immigration enforcement.

          • But yet the U.B.P. cheerleaders boost that the P.L.P allowed a record number of foreign workers to come to the island.
            What a Dreamer.

        • Zevon says:

          Do you ever recall an immigration enforcement action under the PLP? There have been dozens under this government, including court action against unlawful employers.
          Inconvenient when the facts get into it, isn’t it.

      • A Better Bermuda says:

        It’s somewhere between appalled and shocked. Next there will be a demand for the Minister’s resignation and then a march. Same cr@p different day.

  6. Wow says:

    So did Immigration side with the Bermudian or the Company? If they side with the Bermudain and the Minister didn’t listen to his technical advisors we have a problem Jack!!!!What chance do the rest of us have at being treated fairly by this man. :(

    • Build a Better Bermuda says:

      Actually, it seems to greatest complaint the Ombudsman has with this case is that the Ministry did not communicate the results of their investigation to the ‘Professional’, made no mention as to if the ‘Employer’ had actually inflated the requirements, as was the ‘Professional’s’ belief.

    • Zevon says:

      So now we know. The minister supported the decisions and actions of the Immigration Dept.

  7. Jone says:

    Sounds bad.

    • Ray says:

      Listen to all the crickets chirping tonight. That’s the only sound coming from Fahy Fahy. The Premier needs to pull him in the office and DUNK him in milk.

  8. 1 minute says:

    Where is the part where he says that the minister should resign?

  9. Terry says:

    Is Walton talking about “REAL” Bermudians?
    Is he incorporating “Bermudians with Status”.

    Between him and the Belco man……………………..

  10. Unbelievable says:

    I’m disappointed in the Minister as well so he needs to provide a clarification on why he chose to not take the advice of the Ombudsman. I do not agree that the company needs to be named. That’s just the PLP on their crusade of crucifying everyone who goes against their philosophies. Whatever they may be.

    • Scorpio says:

      The company need not be named, but they also shouldn’t be rewarded for bad behavior. This is a blatant act of discriminating against Bermudians, as lying about ‘no local applicants’ clearly indicates zero intention of hiring a Bermudian who may very well be qualified. The permit should not have been granted, PERIOD, and its time we stopped making this a PLP/ OBA thing. This was an action by a Government Minister which did not serve Bermudian interests, which should concern anyone regardless of one’s political leanings. And, as someone who has a very close family member inside Immigration, morale in the department is dropping because of situations like this one.

      • Unbelievable says:

        Yeah but now we know that the applicant didn’t have the qualifications.

        • Triangle Drifter says:

          Many missed that little point. Seems the applicant knew that too. Wasted everyones time on a fishing trip.

          • Unbelievable says:

            No one want stop even admit that point. It’s just hate towards the OBA.

        • Scorpio says:

          Yes, the person supposedly is not qualified. Were they the only Bermudian that applied, because the employer said ‘no local applied’. No-one seems to want to tackle that one.

  11. Noncents says:

    I actually agree with the shadow minister in this case- its pretty hard not to.

    Minister Fahy is coming across as incredibly arrogant and his refusal to address the situation gives increasing credibility to the PLP’s otherwise ridiculous assertion that the OBA does not care about Bermudians.

    • Its increasingly credible that the U.B.P is RIDICULOUS.
      Don’t fight the feeling, just except it for what it is.
      I know it’s hard but it is what it is.

  12. concern_bda says:

    This is definitely a case where we need to name and shame the company that is breaking the laws.

    I hope the complainant opens up a case into this matter.

  13. San George says:

    Mr. Brown Bermuda is the next Greece or Puerto Rico if we don’t get this debt situation dealt with. We need more violations and accommodation to employers by this government if we are going to grow our way out of this economic problem.

    Quo Fata Ferunt

  14. Jackie says:

    Sadly, if that company were forced to give the job to the Bermudian because the permit had been revoked, lets face it, we all know that company would have found every bit of fault with that persons performance and then let them go at the end of their probation period just so they could hire that Non Bermudian. It happens all the time and these companies get away with this crap, all the time. Or, they put a Bermudian in a Manager role to look like a ‘good corporate citizen’ in the immigration/governments eyes but really treat Bermudian staff like crap and all the perks go to the Foreigners first, but wait, its their company they can do what they want, right?

    Our Bermudian children go and get degrees, masters, etc., and still cannot find a job so they do what they can whether it be a cashier, gas station attendant, construction worker, etc….while they are applying for what they have a degree in.

    Does anyone know just how long a person (previously married to a Bermudian) who had a child from that Bermudian can stay in Bermuda to work without a permit? Is it until that child finishes school? What about those who are still here, are they on permits because most cannot afford to pay for a PRC and definitely don’t qualify for Bermuda Status.

    How can you take someone totally unqualified, who has no managerial skills, and a non Bermudian at that and give them a managerial role over a qualified Bermudian just because they are divorced from a Bermuda and have a Bermudian child?

    What is this Island coming to.??

  15. Build a Better Bermuda says:

    My question goes to the beginning of this, the ‘Professional’ originally complained that the advertisement by the ‘Employer’ had “inflated the experience requirement” for the job being posted… did the ‘Professional’ actually meet those ‘inflated’ requirements, or was she just applying for the job hoping they would deflate the requirements for her case? Because if the ‘Employer’ dismissed her application because she didn’t have all the qualifications… well.

    • And what proof do you have that the professional doesn’t have the requirements to do the job?????

      • Build a Better Bermuda says:

        None, I simply posed a question that I can find no reference to having been addressed… it is your assumption that I said she wasn’t qualified. Is it wrong to ask questions for answers not given??

        • In the event you’d overlooked this…

          I want to thank you Minister Michael Fahy for you’ve demonstrated, (once again) the Opposition couldn’t and shouldn’t be trusted under no circumstances! The P.L.P. were the Government of the day when the Tuckers Pt. Golf Club driving range had been approved…It’s a fact. So please “u’lot” (P.L.P) cease attempting to mislead the people with your rhetoric.
          As for the other matter, the one concerning immigration. I quote:“In short, the grievance began when the Professional alleged she was never contacted by an Employer after she submitted her application for a job with them; over three months after submitting her application in late June 2013. Following enquires by the Professional the Professional was notified via email by the Chief Immigration Officer that a work permit had been approved for the post.”
          (Now, to conclude this issue.)“The Department conducted its own investigation into the matter and established that the Employer’s agent closed the mailbox one day prior to the deadline for receiving applications. The Department presented the facts of its investigation to me, as the Minister. I decided not to revoke the work permit issued, as is in my right to do. This was in fact after I made direct contact with attorneys for the Employer seeking further information in respect of qualifications required for the post, whether any applications had been received and whether the Employer would consider the Professional’s qualifications as suitable for the post. Relevant notations were placed on the file by me. I made the determination that the post box was mistakenly closed by the Employer’s agent one day prior to expiry of the advertising deadline and that the Professional did not in my view have the requisite qualifications or experience to fulfill the role being sought by the Employer…Whilst I disagreed with the recommendation of the compliance officers, I am entitled to do so and it is within my discretion. I stand by my decision 100%.”
          End of conversation.

      • Richard says:

        What proof do we have that they do?

    • Young Bermudian says:

      This is an assumption, but it is a likely scenario that the “Professional” talked to persons withing the “Employer’s” Company to learn more about the position. Insiders always provide the most damaging information.

      • Build a Better Bermuda says:

        A fair assumption to assume that she had inside knowledge, maybe it is just the way the statement was written, but as it is written “She was motivated to notify the Ministry by her belief” that puts some doubt to insider knowledge. Had she been acting on insider knowledge, one would expect a statement along the lines that “She was motivated to notify the Ministry as she had learned” rather than it was her “belief”

    • Scorpio says:

      You made note of that, did you also note that the company said no local applicant applied? They got caught in an act of lying in order to bypass a Bermudian whether qualified or otherwise, and armed with that information the Minister made a calculated choice not to penalize the company. Whether ‘the Professional’ was qualified for whatever arbitrary standard the employer set is immaterial in the grand scheme.

      • Build a Better Bermuda says:

        They received no local applicants due to to factors, the applicant waited to the last day to apply and for whatever reason and the Employers receiving box was closed the day before. Now to your statement “Whether ‘the Professional’ was qualified for whatever arbitrary standard the employer set is immaterial in the grand scheme”… seriously, did you actually read that first. ‘Immaterial in the grand scheme’, any employer that posts an advert for a job with specified qualifications isn’t going to hire someone who doesn’t meet those qualifications if they have an applicant who does. The only time they might consider someone who doesn’t meet their qualifications, and that is if none of their applicants do.

        • Scorpio says:

          First, who is to say the professional was the only local applicant? Do you know something we don’t? Because its more likely than not that other Bermudians applied, yet according to the employer no Bermudians applied. We don’t know one way or the other, but I find that unlikely. As for my point about the applicant not qualified being immaterial, I meant in the sense that the larger issue is whether the employer lied about the lack of local applicants. Obviously generally speaking if a person isn’t qualified, well then they aren’t qualified. My focus is less on the professional, and moreso on the bigger picture as to whether proper hiring practice was carried out.

        • Scorpio says:

          Further to my last post, another issue is that the employer ended the application deadline a day before it was supposed to. That, and the ‘no locals applied’, are IMO bigger issues than the professional being under qualified. Because then it becomes easy to dismiss the situation as’ she wasn’t good enough, nothing to see here’ without having to tackle the other issues.

  16. Big Eyes says:

    Really Mr. Fahy and I thought you were for Bermudians..this clearly shows you are NOT!!!!!!

  17. Carpenter says:

    No govt let in more foreigners in the blue collar section than the PLP .

    • True that. There had been an influx of foreigners, who by the way, are still here doing menial jobs that just about any Bermudian can do if willing to work for the wages being paid to the foreigners…And even if the Bermudians were to accept these jobs but still required more money per week / month to make ends meet then they as Bermudians can get the required assistance…

    • Richard says:

      One of the reasons why they were voted out. It appears that the OBA haven’t learned from the errors of the PLP and I’m taking bets that they will be out after their first term.

      Swing voters didn’t vote in the OBA to continue the practices of the PLP. How many more of these gaffes will they make before its to late?

  18. Micro says:

    But where was the alarm when the PLP were allowing the same thing?

    • Richard says:

      The alarm bells were rung at the polls during the last election. Many people who had previously voted PLP cast their votes for the OBA for reasons similar to what’s being discussed here today. The OBA are racking up a long list of reasons for why they should be voted out at the next election.

  19. Zen says:

    What a joke the plp is acting like it never happened under them and with the so called kernel birch….

    • Richard says:

      Sigh…you just don’t get it do you? The debate we are having here is juvenile. “Well they Did to too”

  20. The Truth and Nothing but the Truth says:

    More of nothing from Walton and his clueless fan club! Yawn!

  21. had enough says:

    Simply – when the economy was growing under PLP – the influx of foreigners was warranted. Now that the ecomony has slowed – it is time the send these foreigners home.

    Why should employers be allowed to dictate Bermuda’s social structure by selective hiring practices.

    • @ had enough: Excuse me, “Simply – when the economy was growing under P.L.P. – the influx of foreigners was warranted.”
      If not wrong our economy has been / is in this hole / rears due to the P.L.P. and no signs of any come backs as you’ve claimed while being under a P.L.P. leadership. If so, show me/us where we were coming back :-( Bermuda had been and still is in a couple billion dollars debt.

  22. Alvin Williams says:

    One more example of how much Bermudians stand to lose in their country with this government in charge of our fate.

    • Zen says:

      Lost enough under the former which lead to this take up your flag and admit they screwed up big time and bailed out….the opposition at the time to failed they did a poor job. So no high expectations of them either.

  23. aceboy says:

    Mr. Williams….do you have Greek blood in you? I only ask because you sound just like them these days.