Court upholds Crown counsel’s termination after absences
A High Court judge has upheld government’s 2013 termination of a former Crown counsel who claimed that he had to stay away from the office and work from home due to his hypersensitivity to radiation emitted from cellular phone towers.
David Penn, who was employed by the Attorney General’s Chambers from 2008 to 2013, will have to repay a portion of the bond he was granted in 2003 when government agreed to fund his law studies at the University of the West Indies.
According to a July 28 judgment from High Court Justice Nicola Byer, Mr. Penn’s attorney Terrence Neale had argued that then-Governor Boyd McCleary had followed the wrong procedure under the Service Commissions Act 2011 when he terminated Mr. Penn.
But, according to the judgment, Mr. Penn’s termination was lawful because an employee who is absent from work for a continuous period of more than 10 days without “reasonable excuse” shall be deemed to have resigned.
“This court is of the opinion, in looking at the wording of the section, the words are clear,” Ms. Byer wrote, adding that although the JLSC had granted Mr. Penn a disciplinary hearing to defend his actions this step wasn’t necessary because he had left his post.
Study leave bond
Mr. Penn had also asked the court to issue a declaration that he wasn’t in breach of his 2003 study leave bond agreement, but Ms. Byer ruled that he had violated it.
He will have to compensate government for three years of the eight-year bond for the period from 2013 to 2016, according to the judgment.
The amount of the bond wasn’t disclosed in court documents. However, the justice sided with Mr. Penn on another point: that he was entitled to receive vacation time up until his termination.
Mr. Penn’s June 20, 2013 termination letter stated that he was deemed to have forfeited his accrued time.
Mr. Penn, who is now a lawyer in private practice, declined to comment for this story when contacted Tuesday morning.
However, court documents show that his fight to keep his job and remove the cell phone towers has been ongoing for years.
Cell towers
Mr. Penn began working at the AG’s Chambers in 2008, according to the documents. At the time, the office was located in the Central Administration Building on Wickhams Cay, but by 2012 the chambers had moved to the TTT Building near the Festival Village Grounds. Cell towers are installed on the roof of a nearby building, Jayla Place.
According to a 2012 lawsuit Mr. Penn filed against the AG and the Telecommunications Regulatory Commission, he claimed that since 2007 he had been “medically assessed and certified by three medical doctors as being electromagnetically hypersensitive.”
That condition and the purported effects of radiation coming from the towers, described in affidavits filed in support of his claim, allegedly caused Mr. Penn to suffer symptoms including general fatigue, nosebleeds and headaches.
In his 2012 suit, he asked the court to order the TRC to remove cell towers from Jayla Place and three other locations around the territory that he frequented.
But in her judgment, High Court Justice Vicki-Ann Ellis denied that request, finding that the towers’ existence was not undermining his right under the 2007 Constitution to “an environment that is generally not harmful to [one’s] health or well-being.”
Radiation levels
Evidence submitted as part of the lawsuit revealed that “the relevant levels of electromagnetic radiation do not exceed applicable international standards established by the International Commission of Non-Ionising Radiation Pollution Protection,” Ms. Ellis wrote in the judgment.
She added that Mr. Penn’s condition, “electromagnetic hypersensitivity syndrome,” wasn’t enough to justify the towers’ removal.
“The evidence which he has put before the court demonstrates that this is not a medical disorder recognised by the World Health Organisation and that there are no known paths to its diagnosis and no clear diagnostic criteria,” the judgment stated. “Further, the medical evidence submitted by the claimant also states that there is no known cause for this condition but that the treatment is to avoid the stimulating effects of electromagnetic waves and electricity.”
Concerns about radiation caused by cell phone towers have risen markedly since 2006. That’s when the liberalisation of the VI’s telecom market has meant that the territory’s three mobile phone operators — LIME, Digicel and CCT Global Communications —have erected dozens of new towers to improve cellular coverage.
But a study of 21 towers carried out in 2010 by the TRC and researchers from the University of the West Indies found that radiation levels being emitted were far lower than the maximum allowed by international standards.
TIMELINE: Radiation concerns
2003: David Penn, a civil servant with 10 years of experience, enters into a “study leave bond agreement” with government and is granted funds to pursue studies in law, according to court documents.
2008: Mr. Penn graduates from the University of the West Indies and takes a position as a Crown counsel in the Attorney General’s Chambers. Under the terms of the bond agreement, he is to work for government for an additional eight years or become personally liable to repay the bond.
2012: On multiple occasions during the year, Mr. Penn fails “to present himself for duty for continuous periods in excess of 10 working days,” according to court documents. He later claims that the absences stemmed from working too close to “certain cellular antennae,” and he allegedly begins to work from home without permission, documents state. Since 2007, Mr. Penn reportedly claims, he had been diagnosed as being “electromagnetically hypersensitive.”
Dec. 31, 2012: Mr. Penn files suit in the High Court against the Telecommunications Regulatory Commission and the attorney general, asking for a judge’s order to force the removal of cell towers near the offices of the AG’s Chambers, near Mr. Penn’s home, close to the Terrance B. Lettsome International Airport where his parents have a restaurant, and near the Tortola Sports Club in Pasea. In support of his filing, Mr. Penn cites Section 29 of the Virgin Islands Constitution, which states, “Every person has a right to an environment that is generally not harmful to his or her health or well-being.”
Jan 28, 2013: High Court Justice Vicki-Ann Ellis dismisses Mr. Penn’s lawsuit against the TRC and AG, stating that the TRC does not have the legal authority to order the antennae removed. That authority belongs to the Town and Country Planning Department, Ms. Ellis states in her judgment.
April 17, 2013: At a hearing of the Judicial and Legal Services Commission convened to investigate his absences from work, Mr. Penn testifies and tenders medical evidence of his condition. However, the following month the JLSC recommends to then-Governor Boyd McCleary that Mr. Penn’s employment be terminated. He is told of the termination on June 20.
Nov. 20, 2013: Mr. Penn files suit before the High Court, asking for a judicial review of government’s decision to terminate his employment. He seeks court orders quashing the termination and the decision to forfeit his vacation leave, as well as a declaration that he is not in breach of his study leave bond agreement.
July 28, 2014: After hearing from lawyers from the AG’s Chambers and Mr. Penn’s attorney Terrence Neale, Justice Nicola Byer rules in government’s favour, refusing to grant the orders Mr. Penn sought. Instead, she orders him to pay back the remaining portion of the bond for the 2013 to 2016 period. However, Ms. Byer grants his request to quash the order forfeiting his vacation leave.
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