By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The government subjected a 30-year veteran social worker to “undisguised economic coercion” by unlawfully withholding his salary and forcing him to work for free for a year prior to locking him out.

Justice Loren Klein, in a September 15, 2025, verdict ruled that there was no legal or contractual authority to support the Government’s decision to withhold “all the pay” due to Michael Holmes after he refused to be redeployed from Cat Island to New Providence in March 2022.

He rejected the Government’s arguments that General Orders, which govern the Bahamian civil service, as well as the Public Service Commission Regulations and Bahamas Government Human Resources Policies Handbook, gave it sufficient legal justification to act as it did because these only dealt with punishments for officials “absent without leave” and who fail to appear for work.

In contrast, Justice Klein noted that Mr Holmes had continued to report to work for free at his Cat Island offices until locked out on the Government’s orders. Nor was the veteran social worker facing disciplinary proceedings, and he had not been dismissed from his post.

And, ordering that Mr Holmes’ “withheld salary” be restored for the 18-month period between April 1, 2022, to October 16, 2023, the judge also mandated that the “status quo” between the two sides be maintained as he rejected the Government’s assertion that payment would require the Public Treasury to unlawfully “deplete” its resources.

Dismissing all arguments put forward on the Government’s behalf by the Attorney General’s Office, he asserted that it was not well-placed to complain given how Mr Holmes had been treated and subjected to “undisguised economic coercion” to redeploy back to New Providence by withholding his salary.

Justice Klein, in a verdict that will likely raise fresh concerns about how the Government treats its employees, ruled that the dispute with Mr Holmes erupted after the latter “challenged his transfer from Cat Island to New Providence, which he asserts was done without lawful justification, proper notice or consultation” with the Bahamas Public Services Union (BPSU) that represented him.

“The claimant is a social worker, who has been employed with the Department of Social Services for some 30 years since August 2, 1993,” Justice Klein wrote. “At the point that this matter arose, his annual salary was $29,450.

“During May of 2019, he requested a transfer to Cat Island, apparently with the intention of retiring there. By letter dated January 9, 2020, he was notified that his request for transfer had been approved with effect from January 13, 2020. He thereupon relocated to Cat Island.”

However, barely two years later, Mr Holmes received a letter from social services’ assistant director advising him he was being redeployed back to New Providence with effect from February 1, 2022. “Greatly distressed at this development, the claimant travelled to Nassau to speak with senior officials of the Department, outlining the hardship he would face in being redeployed,” Justice Klein said.

“He pointed out that since his transfer to Cat Island he had invested in, among other things, a family home and had decided to settle there. His overtures bought him a little time, but on March 11, 2022, he received a letter which indicated that he had been expected to report for duty at Princess Margaret Hospital (PMH) on March 7, 2022, and reprimanded him for returning to Cat Island ‘without approval’.

“It stated further that a failure to report to PMH on March 14, 2022, ‘will result in you being absent without leave and therefore without pay’,” Justice Klein added. “He responded by letter the same day further protesting the transfer.

“Among other things, he stated that he had become integrated in the Cat Island community, owned a home there, his wife was stationed there, and apparently he had also been elected as a local government representative - deputy chairman for Arthur’s Town.

“Furthermore, he remonstrated that he did not have any housing or a vehicle in Nassau, and added the caveat that if he were required to return to New Providence - if the Department did not relent - he would request lodging, transportation and ‘disturbance’ allowances. By letter dated March 30, 2022, the Department refused his request for any of the allowances sought.”

Mr Holmes “thereupon took the decision to remain in Cat Island and continue to report to his normal place of work. However, beginning on June 5, 2023, he was locked out from the Cat Island office by a colleague who reportedly indicated that she was acting on instructions”.

“The claimant initiated conciliation proceedings before the Labour Board to try to resolve the matter, but filed a [Supreme Court action] seeking urgent injunctive relief after the defendant continued to lock him out,” Justice Klein added.

Mr Holmes, in his legal action, asserted that the “coding” or withholding of his salary as a public officer was “unreasonable, unlawful, unfair, oppressive, arbitrary” and in breach of the industrial agreement between the Government and the BPSU, as well as general orders, the Public Service Commission regulations and “the principles of natural justice”.

As a result, Mr Holmes argued that the withholding of his salary was “null, void and of no effect”. The veteran civil servant argued that “the withholding of his salary was unlawful and caused him significant financial hardship, including the risk of losing his family home in Cat Island”. 

He added that the Government had failed to comply with the requirement in the BPSU industrial agreement that public servants be given 15 days’ notice of inter-island transfers, while also citing General Orders 604 as giving civil servants the right to accept or reject redeployments based on their “own interests”,

The Government, though, stuck to the position that the “coding” or withholding of Mr Holmes’ salary was “reasonably and lawfully” done because he was considered “absent from work unless he accepted the transfer to New Providence, and therefore he was not entitled to receive his salary”.

Justice Klein, in his ruling, stated: “The essential argument being made by the claimant is that the defendant has unilaterally, unlawfully and without due process withheld his salary, notwithstanding that he has not been terminated and had continued to report for work until prevented from doing so.”

To justify actions, the Government cited different sections in General Orders and the Public Service Commission regulations that dealt with civil servants being absent from work without permission or taking unauthorised leave. However, Justice Klein found that none of these applied to Mr Holmes’ circumstances.

“It is clear that he is not caught by the prescription of [the regulations] as he continued to report to his Cat Island station and did reply to the charge of being absent without leave. In any event, he was not dismissed,” the judge wrote.

“There is, however, no power under the regulations - and the defendant has drawn no other authority to the attention of the court - that permits the withholding of the entirety of a public officer’s salary who continues in employment and against whom no disciplinary proceedings are taken.

“To the extent that it is suggested in the Handbook that the permission of the permanent secretary can be sought to ‘code’ a public officer’s salary other than the procedure relating to interdiction, this is clearly ultra vires the regulations and unlawful,” Justice Klein added.

“This is not the place to consider the legal status of the Handbook, but the law is crystal clear that policy documents, even if they form part of a contract - and there was no argument on whether the Handbook formed a part of the claimant’s contract - cannot override statutory provisions.”

Justice Klein said that “withholding a public officer’s salary is not even a recognised form of punishment”, and added: “In reality, this is not even a case of being absent without leave, nor about claiming pay for work not done. This is a case where the employer always knew where the employee was.

“Admittedly, he was protesting his redeployment whether rightly or wrongly, but was willing to work and reported to work at the station at which he was last assigned to work until he was locked out. In fact, it is a point of some significance that the claimant was not locked out until June 5, 2023, which means that he in fact worked for roughly over a year even after his salary was stopped.

“He had worked for much of the period and had always indicated an intention and willingness to work. If the Department were of the opinion that the claimant’s action constituted a breach of the terms of his employment that merited disciplinary action - even serious disciplinary action - they were free to take such action in this regard,” the judge added.

“But they had no statutory, contractual, or common law authority to simply withhold all of his pay while affirming his employment and contract with the Department in the absence of any disciplinary proceedings.”

As for restoring Mr Holmes’ withheld salary, Justice Klein said of the Government’s opposition: “The Defendant submits that the grant would require them to unlawfully ‘deplete’ their resources (i.e, require payments from the Public Treasury), but I am not at all persuaded by that submission.

“As discussed, the defendant has not taken any disciplinary action against the claimant that could possibly result in his dismissal (or at all.. Furthermore, the defendant cannot be heard to complain about payments without lawful justification when in fact the claimant worked for over a year without pay, and was only prevented from continuing to work by the defendant’s actions.

“The defendant, represented by the Attorney General, is a government department. It holds vastly superior bargaining power as well as the statutory authority to take whatever course of action it deemed (or deems) necessary by way of disciplinary action to ensure compliance with any operational instructions and an employee’s terms of employment. But it cannot bypass those statutory alternatives in favour of undisguised economic coercion.”