By NICO SCAVELLA
Tribune Staff Reporter
THE Court of Appeal has ordered that a Supreme Court judge is to determine whether former Commissioner of Police Ellison Greenslade was right to fire a police constable because of his unwillingness to compromise a key component of his Muslim faith.
The appellate court ruled Justice Indra Charles must adjudicate on Bertram Bain’s judicial review of Mr Greenslade’s decision to fire him because of his unwillingness to shave his beard in accordance with the Royal Bahamas Police Force’s grooming policies.
The order comes after Mr Bain sought to appeal Justice Charles’ decision not to grant him an injunction against Mr Greenslade’s August 2, 2017 decision, despite counsel from both sides previously agreeing that his judicial review application should be granted.
A copy of Mr Bain’s discharge certificate seen by The Tribune showed that in August 2, 2017, the officer of 17 years was discharged from the RBPF “in accordance with Section 7 (c) of the Police Disciplinary Regulations No 1965 and Section 21 (1)(c) of the Police Force Act 2009.”
The discharge certificate noted that during his tenure with the RBPF, Mr Bain’s “conduct and general character has been unsatisfactory”. Mr Bain first joined the RBPF in 2000, and converted to Islam sometime in 2011.
However, according to court documents seen by The Tribune, Mr Bain claimed his dismissal was the end result of his multiple attempts at having Mr Greenslade acquiesce to his pleas to adhere to the Muslim practice of not shaving one’s beard while serving as a member of the RBPF.
According to an affidavit filed July 6, 2016, which lists Mr Greenslade as one of seven defendants, Mr Bain met with the former commissioner and/or other senior officials no less than three times on the matter, dating as far back as early 2015. And each time the relevant parties met, Mr Bain informed all present of his Muslim faith, according to the affidavit.
In one such instance, on June 10, 2016, and in the presence of current and/or former members of the RBPF’s senior executive leadership team and other RBPF officials, Mr Bain “humbly requested Mr Greenslade to assist with some accommodation to Muslim practices to wear a beard.” In the affidavit, Mr Bain said he did so “with humility and out of respect to consider awareness of my constitutional rights, and status as a police officer and as a Muslim.”
This represented an immediate conflict, Mr Bain acknowledged in a previous interview with The Tribune, given the grooming policies of the RBPF and the reported Muslim practice of not shaving one’s beards in reverence of Islam and its founding prophet, Muhammad.
Mr Bain, via his attorney Maria Daxon, subsequently applied for judicial review of Mr Greenslade’s decision on the basis that Mr Greenslade’s decision to dismiss him without giving him the opportunity to respond was “unconstitutional, unreasonable, unlawful, null and of no legal effect”.
Mr Bain further submitted in his application that Mr Greenslade “irrationally exercised his powers” when he “failed to promptly allow the applicant the opportunity to appeal his decision before he was dismissed”.
Mr Bain also challenged the legality of his dismissal, alleging that Mr Greenslade “illegally exercised his powers” when he “either by deliberate and/or by neglect failed to ensure that the applicant’s benefits payment be suspended, withheld or denied before the applicant had the opportunity to exhaust the appeal process”.
He also sought an order of certiorari to quash Mr Greenslade’s decision “and/or his servants” to dismiss him without giving him an opportunity to respond, as well as to quash Mr Greenslade’s decision to recommend that his “benefits payment be suspended, withheld or denied before the applicant had the opportunity to exhaust the appeal process”.
Mr Bain also sought an order of mandamus to direct the commissioner to “update, adjust and correct” his benefits, and to restore and pay him”all benefits awards due and payable to him, as at the date of his discharge until the completion of the appeal process.”
In addition, Mr Bain sought six declarations, which include, but are not limited to, that Mr Greenslade’s decision to terminate him “was so manifestly unreasonable that no reasonable authority or tribunal, entrusted with its powers, could reasonably have come to that decision in all circumstances of this case”, and that Mr Greenslade “has acted unfairly, unlawful, unreasonable, arbitrarily, capriciously and abusive towards the applicant”.
Mr Bain also filed an injunction against the August 2017 decision, in which he sought to have his “status quo” remain in place and “all rights and benefits as a police officer” continue until the matter was adjudicated by the Supreme Court or until the completion of the appeal process.
Justice Charles did not grant Mr Bain’s injunction however, and further stated that she did not have the power to order the Commissioner of Police, the respondent in the matter, to have his salary reinstated until the appeal process or the case was completed.
Mr Bain consequently appealed Justice Charles’ ruling, asserting that her decision was “unreasonable” and could not be supported in law on the grounds of justice and fairness. He further charged that no judge “having regard for their duty to act fairly could reasonably have come to the conclusion” she did.
Particularly, Mr Bain asserted that the judge erred in both fact and law by refusing to stay Mr Greenslade’s decision, despite having heard the evidence of both Superintendent Damian Robinson and Sergeant Paul Jones, who both agreed under oath that their former boss’ decision should have been stayed in accordance with law, namely the Police Force Act 2009 and the Bahamas constitution.
Yesterday however, Ms Daxon told The Tribune the appellate court remitted her client’s matter to the Supreme Court for the judge to make a determination on the “substantive application”.