By Kim Tuitt

Permanent Secretary Ena Dalso-Henry’s handling of an incident involving Valencia Marshall represents a profound failure of public sector management, characterized by procedural illegality, a prejudicial investigation, and a reckless disregard for the rights of an employee. Her actions were not merely poor management; they were arbitrary, unlawful, and egregious. The present critique is a call for accountability in the public service and to assist the public at large in understanding how the public service should function. It also serves as a warning to senior public officials that the rule of law is paramount, and that decisions ought not be arbitrary and irrational.

Background

On July 20, 2015, Valencia Marshall was employed as a Ward Assistant at the Fiennes Institute. On February 5, 2021, she intervened in a dispute between two patients, which escalated into a violent physical altercation with a patient, Vernon Browne, during which both parties sustained injuries from a metal pipe. Following the incident, Marshall was sent home on February 10, 2021, and subsequently dismissed by letter dated February 18, 2021, signed by Permanent Secretary Ena Dalso-Henry, who had investigated the matter and concluded that Marshall had violently assaulted Browne. Aggrieved by her termination, Marshall filed a claim with the Industrial Court on June 6, 2023, arguing that she acted in self-defence and that her dismissal was procedurally unfair and without just cause.

COURT DOCUMENT HERE: Industrial Court Document: LENCIA MARSHALL (Employee) and THE ATTORNEY GENERAL OF ANTIGUA AND BARBUDA MINISTRY OF HEALTH, SOCIAL TRANSFORMATION AND THE ENVIRONMENT (employer)

Fundamental Breach of Natural Justice (The Right to a Fair Hearing)

The Court highlighted “significant concerns” regarding the investigation. Dalso-Henry admitted she was restricted from in-person inquiries due to COVID-19 protocols. However, the Court found that she used this as a justification for conducting an inherently unfair process.

Firstly, Dalso-Henry relied on reports she claimed to possess. However, the Court concluded it was “conceivable that the Employer did not have the statements of the other witnesses which it relied upon at trial on the date the Employee was dismissed.” Crucially, witness Bernadine Abbott testified that she was never asked for a report by Dalso-Henry, Walton Edwards, or the Matron at the time of the incident, and that the signature on a report exhibited by Dalso-Henry was not hers. This is very important since it suggests Dalso-Henry either fabricated evidence or made a decision based on incomplete information.

Secondly, Dalso-Henry made a determination of guilt (“the Employee had violently assaulted Mr. Browne”) without ever hearing Marshall’s full side of the story in a formal setting that allowed for rebuttal, and apparently without corroborating the evidence she claimed to have. This violates the most basic tenet of justice: audi alteram partem (hear the other side).

Ultra Vires Actions (Acting Without Legal Authority)

The dismissal letter was signed by Dalso-Henry and stated she had consulted with the Minister.

The Court marked a critical legal distinction. It referenced the case of Angelique Ford vs Permanent Secretary (2012), which established that a Permanent Secretary cannot dismiss an employee unless they are explicitly acting under the direction and authority of the Minister. Merely stating “consultation” occurred or copying the Minister on the letter is insufficient. The Court found no evidence that the Minister directed the dismissal; therefore, Dalso-Henry acted ultra vires (beyond her legal power). In other words, the Court deemed Dalso-Heenry to have acted without legal authority.

As a Permanent Secretary, she is the chief accounting officer and supervisor of the department. She is expected to know the limits of her statutory authority under the Constitution and the Civil Service Act. Ignoring these boundaries renders her actions null and void in a legal sense and demonstrates a disregard for the rule of law and makes Dalso-Henry’s action particularly egregious.

Prejudgment and Failure to Consider Mitigating Factors

Dalso-Henry stated that she determined Marshall had “violently assaulted” Browne based on reports, his disability (amputation), and his injury. However, she ignored the context of a volatile workplace. Evidence from Marshall and Abbott detailed Browne’s history of aggression, threats, and loud behaviour. The Court ultimately believed that Browne was the aggressor armed with a pipe. Dalso-Henry made no effort to balance Browne’s allegations against the Employee’s six years and seven months of unblemished service.

Dalso-Henry allowed sympathy for Browne’s disability to cloud her judgement, assuming that because he was an amputee, he could not be the aggressor. This view is both biased and superficial. The Court explicitly found that Marshall acted in self-defence and did not use excessive force.

Abuse of Power and Mismanagement of Public Office

Dalso-Henry’s actions constitute mismanagement in a public office. She wielded the significant power of the State to terminate a citizen’s livelihood based on a flawed process. Marshall was consequently left unemployed for months, lost pensionable service, and had to endure a lengthy legal battle to prove her innocence. As a result of this mismanagement, the Government of Antigua and Barbuda (the taxpayer) was ordered to pay $29,944.16 in compensation.

Government’s Response

Sometime after this judgement, Dalso-Henry was transferred from the Ministry of Health to another Ministry as Permanent Secretary. Given the severity of the findings, a mere transfer is clearly insufficient. It was incumbent upon the government to have taken one or more of the following steps:

1. Internal Investigation by the Public Service Commission: The Public Service Commission (PSC) should have launched an immediate investigation into the conduct of the Permanent Secretary. The findings of the Industrial Court provide ample prima facie evidence of misconduct and incompetence.
2. Disciplinary Action under the Civil Service Act and Regulations: Dalso-Henry ought to have been charged with disciplinary offences, including:
   • Neglect of Duty: Failing to conduct a proper investigation.
   • Conduct Unbecoming of a Public Officer: For the apparent irregularities with witness statements and signatures.
   • Violation of the Principles of Natural Justice: Acting in a manner that was procedurally unfair.
3. Financial Reprimand/Surcharge: Where an officer’s negligence leads to financial loss for the Government, the Finance Administration Act allows for the official responsible to be “surcharged,” meaning they could be held personally liable for a portion of the waste of public funds. Given that Dalso-Henry’s actions directly led to a nearly $30,000 payout, this should have been considered. While the Attorney General was the nominal respondent, the Court could have considered whether the Permanent Secretary acted in such bad faith that a personal costs order should be considered against her.
4. Termination: If found guilty of such gross mismanagement and acting beyond her legal authority, the appropriate consequence should have been termination from the Civil Service.

The facts of this case, specifically the finding regarding the falsified signature and lack of authority, warrant charges of serious misconduct.

Legal Consequences for Mismanagement in Antigua and Barbuda

According to the laws of Antigua and Barbuda, Dalso-Henry’s actions could and should have had serious consequences. The Constitution of Antigua and Barbuda (Cap 23) and The Civil Service Act (Cap 87) establish the Public Service Commission (PSC) and endow it with certain powers. The PSC has the power to discipline public officers. “Misconduct” is broadly defined and includes negligence and inefficiency. Her failure to follow the law (acting ultra vires) is a clear disciplinary offence.

Moreover, the Labour Code (Cap 27), the very law that, ironically, Dalso-Henry was entrusted to uphold (as supervisor of a Ministry) provides the standard for reasonableness. Section C58 establishes the “reasonable employer” test. The Court found she failed this test spectacularly. A Permanent Secretary who fails to understand the basic tenets of the Labour Code is manifestly unsuited for a position involving significant human resource management.

Alarmingly, the Court noted the serious allegation that Abbott’s signature was falsified on a report presented by Dalso-Henry. While the Court did not make a finding of forgery in the final order, the evidence presented (Abbott denying her signature) raises a question of whether a criminal offence was committed in the process of defending the government’s case. If a document was knowingly falsified to influence legal proceedings, it could constitute forgery or perverting the course of justice. While the Civil standard of proof applied in the Industrial Court, the evidence was sufficient for the matter to be referred to the Director of Public Prosecutions (DPP) for consideration of criminal charges. The Government therefore failed in its duty to refer the case to the DPP for a determination of whether to charge Dalso-Henry for a criminal offence.

Ena Dalso-Henry’s management of this affair was autocratic, legally flawed, and damaging to the public purse. She did not manage; she dictated. She did not investigate; she prejudged. For her to remain in a senior management position implies that the Government of Antigua and Barbuda condones the violation of its own citizens’ rights and the wastage of public funds due to managerial incompetence. The legal framework of the country provides the tools to discipline such conduct; the failure to use them is a failure of the system itself.