Thomas settles suit over back pay

  • Court settlement: litigation guardian Tiffanne Thomas (File photograph)

    Court settlement: litigation guardian Tiffanne Thomas (File photograph)

A social worker who sued the Government for more than $2.6 million over a failure to pay her for work on court cases that involved vulnerable children has settled the case for an undisclosed sum.

Tiffanne Thomas claimed she was owed the money as payment for her work as a court-appointed independent advocate for children — a litigation guardian.

She said in a writ filed with the court, that when she was first appointed as a litigation guardian in a case involving a minor in July 2014, it was “on the understanding that she would be paid for her services by the Bermuda Government”.

But the amount paid to persuade Ms Thomas to drop the civil case after almost two years has not been made public. Ms Thomas, her lawyer John Hindess and the Government refused to comment yesterday.

Saul Dismont, a lawyer who worked with Ms Thomas on cases involving youngsters in the care of the Department of Child and Family Services and gave a witness statement to the court, also declined to comment. Ms Thomas launched the lawsuit against the Attorney-General and Accountant-General in the Supreme Court in November 2018.

The Supreme Court file recorded the case as discontinued on August 28, with no costs ordered.

Ms Thomas, who went on to be appointed by the Family Court in cases involving more than 30 youngsters, said she received “repeated promises” of payment from Zane DeSilva and Michael Weeks, when each served as social development minister.

And she claimed payment promises were also made by Wayne Caines, when he was national security minister, Major Marc Telemaque, when he was national security permanent secretary, and Owen Darrell, Chief of Staff to the Premier.

But Kathy Lynn Simmons, who is responsible for child protection as the Attorney-General and Minister of Legal Affairs, said in November 2018 that the Government had “no legal obligation to pay Ms Thomas”.

Mr DeSilva, in a witness statement, told the court he agreed to look into Ms Thomas’s claim for payment, but did not make any promises to secure the funds or “give any indication that I was accepting liability on the part of the Government for her fees”.

Mr DeSilva said: “I recall asking her very clearly why she worked on the cases without first entering into a contract with the responsible ministry and why she continued without receiving payment. Her unequivocal answer was that she did it for the love of the children.”

Ms Thomas’s claim for $2.6 million came soon after it was revealed that the majority of children involved in Family Court cases did not get any independent representation.

She said in a witness statement, filed in March this year, that the court had never appointed a litigation guardian before her “despite it having been a legal requirement since 1998”.

She said: “It was very disturbing to hear that a law for the protection of children had been entirely ignored for 16 years by the very bodies created to protect them and, that the subject of the child court proceedings was having important decisions made about them without their voices being heard, without an unbiased assessment of the cases, and without them having a lawyer, all of which the law requires.”

She said it never crossed her mind that the Government would not pay for a service that it had included in the Children Act.

Ms Thomas added: “I made repeated attempts to avoid litigation. I made repeated attempts to resolve this in a manner that could be considered mutually agreeable, but have been strung along and stymied for six years while the Government has refused and continues to refuse to pay me or even acknowledge that discussions and negotiations regarding payment had taken place.”

The Government said in a defence statement filed in July this year that neither the Attorney-General, nor the Accountant-General, “nor any party acting on their behalf entered into any discussions with the plaintiff for payment in relation to her appointment as litigation guardian on or about July 2014 or at any time thereafter in respect of any particular case”.

It argued that Ms Thomas “continued to voluntarily put herself forward and accept appointment from the court as litigation guardian” after being told in November 2016 that the Government intended litigation guardian services to be provided free by a panel of professionals.

The Government said: “The failure of successive administrations to create a panel of litigation guardians gave the plaintiff no automatic contractual or other rights in relation to the provision of litigation guardian services.”

Ms Simmons set up a panel of litigation guardians last December, who have contracts and are paid “upon the presentation of invoices”.

Its members are Elaine Charles, Marilyn “Peggy” Jackson, Sharon Apopa, Lyndon Jackson and Amirah Abdullah.

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Published Oct 8, 2020 at 8:00 am (Updated Oct 8, 2020 at 3:09 pm)

Thomas settles suit over back pay

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