JOMO SANGA THOMAS Plain talk 15th February 2019

The apparent intention of the government to appeal the two recent court decisions rendered against it is highly regrettable. Although there is nothing procedurally improper or illegal about the government’s decision to appeal, such course of action delays any serious effort to fix the gross deficiencies identified by Justice Henry in the Public Service Union (PSU) case.

As regards the ‘NDP teachers’ case, an appeal to the Privy Council may evidence that official, high in the state administration, are nothing more than suckers for punishment since the chance of overturning that decision is remote at best and suicidal at worse. Or there may be a more sinister motive, too ‘dance’ the the teacher and union a little more thus frustrating their attempts to settle into normal life once again.

In the decision about the state of the public service the shocking disclosure is that the Public Service Commission tendered no evidence to meet or counter the case mounted by the PSU. Court watchers knew, long before the decision came down, that the Public Service Commission (PSC), and by extension the government would ultimately suffer a ‘black eye.’

Therefore, Justice Henry’s conclusion that the PSC ‘failed to comply with the regulations in respect of promotion’ even then appeared all but inevitable. Even more damning was the Court’s ruling that the Blazer Williams led PSC ‘failed to observe principles of fairness, transparency and objectivity’ in respect to promotion of civil servants.

There is little or no chance that the Court of Appeal will find reason to trouble the fundamental findings of Justice Henry. Sadly, the decision to appeal may delay Justice Henry’s order which commands the PSC ‘to establish and implement forthwith and maintain an efficient, transparent and effective performance appraisal and promotions regime within the public service, including a robust and functional monitoring and corrective mechanism.’

These finding and orders are so devastating that rather than waste time and money with an appeal that is bound to fail, the government should use its energies to clean out the PSC and put in place the machinery that will shore up sagging morale and rebuild a civil service fit for these pressing and demanding times.

In its purported appeal against the ‘NDP teachers,’ the government will have an even more daunting task. In the trial Justice Cottle found the teachers case was ‘entirely hopeless’ with no chance of success. On appeal, a three judge panel of judicial heavy weights comprising Chief Justice Janice Pereira, Justice Gertel Thom and Justice Davidson Baptiste found that agreement government signed with the Teachers Union did not violate the constitution:

‘there was nothing in the provisions of article 16 qualifying the appellants to be elected to parliament. It was open to the government to initiate the requisite steps for parliament to prescribe exceptions and limitations to the disqualification imposed by section 26(1)(d) of the constitution. The fact that this was not done does not transform a provision granting leave to contest a general election into one that violates the constitution. Further, the provision of article 16 speaking to the return to teaching posts or post of equivalence to the public service, without loss of benefits, cannot be said to violate the constitution.’

That was the fatal dagger right there. But there was more. The court found that the teachers had a legitimate expectation that article 16 of the collective bargaining agreement allowed them to return to their post or one of equivalence if they failed to gain election. The court also found that by refusing to rehire the teachers the government violated their constitutional right to property. The government was ordered to pay on assessment damages for breach of the teachers’ property rights as well as cost of the appeal and in the court below.

Central to the government’s thinking about the appeal may be the fact that the Court did not find bad faith. This line of reasoning may be akin to ‘fool’s gold.’ The Court did not say that there was not bad faith. What it did say was that the teachers did not exhibit sufficient evidence to prove bad faith. The Privy Council may find otherwise. It may go ‘global’ and conclude that apart from what the appellants offered, there was the failure of the government to use the machinery of the state to tweak the exceptions and limitation in section 26 of the constitution.

The government heralded the collective bargaining agreement as a triumph for its pro labour policies and then walked away from the agreement. The government, through the PSC put up section 26 as a bar to the teachers when they applied for leave. But as the court opined the government ought to have known the law of the land. Therefore, its fall back position that the agreement was purely aspirational may irk the Law Lords. Taken together, the Privy Council may contextualize the entire matter, disagree with our Court of Appeal and find bad faith.

A Privy Council ruling that upholds the Court of Appeal decision could be a mortal wound if it is rendered as electioneering for 2020 reaches fever pitch. It can be even worse if the Privy Council finds the government guilty of bad faith. But that is not all. It could get worse. The teachers argued that they were constructively dismissed. The Court of Appeal made no ruling on this point. The Privy Council could agree that the teachers were forced to resign once government refused to honour its promise. If it does the government will now be compelled to pay even more money to these teachers whose teaching careers were cut short because of the government’s refusal to rehire them after the 2010 elections.

There may be method to the government’s decision to pursue these appeals. Remember the Sol negotiations, the argument then was that Sol should have been ‘danced’ a little more. If the intent is simply to make the teachers dance it will amount to callous disregard for the lives and livelihood of citizens. These men suffered enough and should be immediately made whole.

Otto Sam lost his salary, and as a result could not care for his family. His family’s health and house insurance lapsed. He was unable to pay his mortgage and almost lost his home. Yet the government appealed the Master Moise’s award of just over $100,000 in damages. The teachers, Daniel, Johnson and Thomas, would have gone through a similar hell.

There nightmare should be ended now. The cost of the appeals and the continued suffering is too much for our society to bear.

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