Court: ‘The Applicant Was Discriminated Against’

November 24, 2015

Chief Justice Ian Kawaley has dismissed the appeal in the legal case involving former Police Officer Michael Harkin, saying that “the Applicant was discriminated against on the grounds of his place of origin in that the promotion procedure was applied to him in a prejudicial manner by virtue of his being a contract worker.”

In describing the background, the Court ruling said, “The Applicant was employed with the Bermuda Police Service [BPS] on a 5 year work permit which commenced on February 27, 2005.

“He filed a Complaint dated December 12, 2009 against the Respondent under the Human Rights Act 1981 [“the Act”]. It alleged that the Respondent had discriminated against him in breach of section 2(2)(a) of the Act on the grounds of his race, place of origin or ancestry.”

“The particulars were that the Applicant had qualified for promotion from the rank of constable to the rank of sergeant and the Respondent had deferred his promotion until it was clarified that the Applicant would obtain a new work permit after his then permit expired on February 27, 2010.

“When the Applicant filed a grievance about not being promoted at the same time as other officers who had also passed the qualifying exams and alleging a breach of his rights under the Act, the Respondent replied advising the Applicant that his employment would not be extended. In this respect, a breach of section 8[a] of the Act was alleged.”

In the ruling’s conclusion, the Chief Justice said that the “Respondent’s appeal against the Liability Decision is dismissed.

“The Applicant was discriminated against on the grounds of his place of origin in that the promotion procedure was applied to him in a prejudicial manner by virtue of his being a contract worker. No question of actual prejudice in the sense of conscious discrimination arose.”

“The Applicant’s appeal against the Quantum Decision is allowed in part to the following extent:

  • (a) the appropriate loss of earnings period is five rather than three years;
  • (b) the appropriate deduction for failure to mitigate loss is 32% rather than 40%;
  • (c) the loss of pension award is the agreed figure of $83,677.26 without the 40% deduction.”

Following the ruling, Commissioner of Police Michael DeSilva said, “I am aware of the decision and I received a copy of the Judgment today. We will carefully review the document and if our processes need to be revised as a result, we will do so.

“There are other matters related to this specific case that remain to be resolved and as such it would be premature to comment any further.”

The 26-page Court ruling follows below [PDF here]:

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Comments (15)

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  1. flikel says:

    “the Applicant was discriminated against on the grounds of his place of origin in that the promotion procedure was applied to him in a prejudicial manner by virtue of his being a contract worker.”

    Interesting. Many companies offer compensation packages based on place of origin. For example, many companies offer housing allowances to non Bermudian staff only. Is this grounds for a lawsuit?

    • dude says:

      stay in school buddy.

    • YADON says:

      Dude, go back to school.Yes flikel, it is discrimination based on country of origin as well. It essentially means that same work = different pay.

      • rudy says:

        The people receiving housing allowances are here because they add value to the companies they work for. It is the company’s decision to give them allowances. The companies can leave and take everything with them would that make you happier?

        • Onion Seed says:

          Companies can also hire someone for a short period of time who will work hard, provide expertise. If it doesn’t work out, no hassle, permit renewal not requested. Umm abosuitely crazy we don’t want more to learn from, play with, enjoy.

          A Solid education, able to compete in the global market, bit of gift of gab, no chip on shoulder, willing to work overtime or odd hours will go far, if Bermudian or from elsewhere. Successful Onions usually have the whole package. Things have changed in the last 40 years… though feel for those coming of age in the gravy expansion years.

          It’s not a colour thing… an onion thing, a genarational thing. Anyone heard of what it was like pre tourism? during WW2? We still live in a geographical paradise. Gratitude.

          • Onion Seed says:

            Yes, do see typos. Proofreading not a strong suit. LOlL

        • Toodle-oo says:

          The people who get housing allowances , on the most part , get it because they come from countries overseas where they would have to pay income tax by name . We have income tax already x’s 2 but it’s not called that and the cost of living is horrendous , so this is a way of making the reason to come here and be a long way from their family and friends more attractive and make it appear that they have more earning power.
          Otherwise they wouldn’t be able to fly away for Thanksgiving , Christmas , birthday parties , anniversaries , baby showers ,weddings and many other things even including when electricity goes out for weeks after a hurricane , which they regularly do.

          Housing allowances are , I believe , also not taxable , so it’s cheaper for the employer to give it to them that way rather than include it in their total pay package and have it impact in the employees net earnings .

          At the very lowest end of the scale workers come in from developing countries and are packed 3 and 4 into housing designed for one person but get no allowance or deductions .

          Unfortunately for locals stuck here with no-where to go housing subsidies/allowances have a terrible effect on the cost of housing . When you have landlords specifically looking for (as an example) IB company people who get a nice housing allowance and no children they absolutely love it because they can get a couple to rent a house much larger than they need without damages to the property that come with more occupants or children.
          This then pushes the market higher and higher out of the reach of normal working class locals with family who can’t compete with people getting housing allowances.

          As someone once said to me many years ago , there should be NO housing subsidies or allowances. The guest worker’s wage should INCLUDE housing . Then let them get out there and negotiate . That would be really beneficial to all , except landlords of course.

    • Real Talk (original) says:

      Agreed! I would love to see this tested by a Bermudian on the basis that certain forms of compensation are only provided for expats.

  2. NO MORE WAR says:

    The Chief Constable should be held accountable for the waste of taxpayer funds.

  3. So who is gonna pay for ALL the Bermudians that have been discriminated against for years !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  4. Liberty says:

    I think we all lose when opportunities are denied to a professional who will benefit us as a community. Good ruling; await to see if this has future implications on future work permit renewals.

  5. steve says:

    Don’t rough up police for losing a court case. The government seems to lose most/all its court cases. Has Anyone researched this or shall i continue to talk out of my butt?