The Eastern Caribbean Court of Appeal on Tuesday ruled that Article 16 of the Collective
Agreement signed in 2005 by the Government of St Vincent and the Grenadines and the St Vincent and the Grenadines Teachers Union (SVGTU) does not contravene the Constitution.
The Court of Appeal upheld an appeal brought by lawyers representing former SVGTU President Oswald Robinson and union members Kenroy Johnson, Addison Thomas and Elvis Daniel who
claimed that Article 16 of the Collective Agreement does not contravene the constitution as ruled by High Court Judge Justice Brian Cottle in his judgement in February 2016.
The three teachers had resigned their positions position in accordance with Article 16 to contest the 2010 general elections for the opposition New Democratic Party (NDP) because they were not allowed under Section 26 (1) (d) of the constitution to contest national elections while being
employed as public servants.
Article 16 of the Collective Agreement states: “A member of the union of at least three (3) years standing, shall on application, be granted leave-of-absence to contest national/general/local election. The leave of absence shall be no pay leave for a period not exceeding six (6) months. In
the event that the member is unsuccessful, that member shall return to his/her original post or one of equivalent status, all benefits intact. The resumption of duty must be at the beginning of a school term.”
Section 26 (1) (d) of the Constitution states: “No person shall be qualified to be elected or appointed as a representative or senator; if he – (d) – subject to such exceptions and limitations as may be prescribed by Parliament, holds or is acting in any public office or is a paid member of any defense force of Saint Vincent and the Grenadines.”
The teachers wrote letters to the Public Service Commission (PSC) seeking leave. The PSC in response to their letters neither granted nor refused leave but pointed them to Section 26 (1) (d) of the constitution.
The teachers subsequently resigned shortly before nomination day. The contested the elections and lost. When they applied to the PSC to be reinstated to their positions as guaranteed under
Article 16, the PSC said there was no vacant position.
The union took up the matter. And, Oswald Robinson (in his capacity as president of the SVGTU) along with Daniel, Johnson and Thomas, through local lawyers Jomo Thomas and Shirlan Barnwell and Grenadian lawyer Ruggles Fergusson, instituted legal proceedings against the PSC and the Attorney General who is the chief legal advisor to government.
Justice Cottle ruled that Article 16 contravened Section 26 (1) (d) of the constitution, thus he dismissed the claim saying that it was “entirely hopeless.”
The claimants filed an appeal on grounds which the Court was called to determine: (i) whether article 16 of the collective agreement contravened section 26(1)(d) of the Constitution; (ii) whether article 16 gave rise to a legitimate expectation that the appellants would be granted leave
to contest the general election and if unsuccessful, would be reinstated to their posts or to equivalent posts; (iii) whether the respondents acted in bad faith by refusing the appellants leave for the purpose of contesting the general election, and refusing to reinstate them to their original
or equivalent posts after the election; and (iv) whether the respondents breached the appellants’ constitutional right to protection of property.
The matter was heard by the Court of Appeal in July, last year, and the decision was reserved.
In the judgement, written by Justice of Appeal Davidson Baptiste and supported by Chief Justice Janice Pereira and Justice of Appeal Gertel Thom, the court found that Article 16 of the Collective Agreement did not contravene section 26 (1) (d) of the constitution as ruled by Justice
Cottle of the lower court.
“The issue to be determined is whether the appellants’ right to the protection of their property as
guaranteed by section 6 of the Constitution has been violated and if so, what is the appropriate redress. There is no dispute that the appellants resigned their posts as teachers to contest the general elections, lost at the poll, and unsuccessfully applied to be reinstated either to their
original post or to a post of equivalence in the public service. By their resignation, the appellants brought their tenure of office to an end,” Justice Baptiste stated in the judgement.
He also stated: ”To my mind, the critical issue arising in respect of the appellants’ property rights violation argument concerns pension benefits. Pension benefits would be amenable to protection
as property rights under section 6 of the Constitution unless the deprivation of benefits arises from a lack of qualification or entitlement to it. The issue of the loss of pension benefits was in fact foreshadowed by the learned judge in paragraph 15 of his judgment. when he stated that the
small pool of persons qualified to run for office as parliamentary representatives is diminished further if persons who are willing to serve can only do so on pain of loss of all benefits accrued over decades if their bid for political office fails.
The judge then asked the question whether the loser ought to be doubly penalized for his lack of success by depriving him of his expected pension rights. The learned judge answered
affirmatively, although he felt constrained to do so. The constraint is understandable, given the
learned judge’s finding that article 16 of the collective agreement violated section 26(1 )(d) of the
Constitution. Having held au contraire, I do not share the constraints of the learned judge.”
Justice Baptiste said it appeared to that Justice Cottle made a determination that having resigned, contested and lost, the teachers also lost their pension benefits. He said that in his view, once the
appellants are entitled to pension benefits, in the absence of some lawful basis for its deprivation,
in respect of which none has been advanced in the case, the teachers are entitled, not only to a declaration that their property right guaranteed by section 6 of the Constitution has been breached, but an assessment of damages for that breach. He noted that a mere declaration would not be adequate given the nature of the breach.
Justice Baptiste said that on the state of the evidence the Court was not equipped to make the assessment required. He said that apart from evidence of the teachers’ length of service there was an evidential gap and he would therefore remit the matter to the High Court for assessment
of damages.
“The judge would give such directions with respect to evidence and disclosure as required to facilitate the process. It would really involve a com-putative exercise reflecting expected pension benefits up to the date of the appellants’ resignation.
“For the reasons given, I would allow the appeal and set aside the judge’s order dismissing the claim. I would remit the matter to the High Court for an assessment of damages by a judge for breach of the appellants’ property rights protected by section 6 of the Constitution. I would order
that the Attorney General pay the appellants’ costs of the appeal and in the court below, to be-assessed by a judge if not agreed within 21 days,” Justice Baptiste stated in the judgement.