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July 20, 2018
‘NDP teachers’ await decision of appeal

The decision is nigh in the appeal filed by three teachers who, relying on an agreement between the government and their union, had resigned to contest general elections, but were never reinstated.
Elvis Daniel, Addison Thomas and Kenroy Johnson were at the High Court on Wednesday, listening to their lawyers, Shirlan Barnwell and Ruggles Fergusson, appeal their case before the Eastern Caribbean Supreme Court (ECSC) Justices.

It has been eight years since this matter has been in contention, after the general elections of 2010, when Daniel, Thomas and Johnson resigned as teachers to contest the general elections for the New Democratic Party(NDP).

They may have felt it necessary to resign because of section 26 (1) (d) of the St Vincent and the Grenadines (SVG) constitution which 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 defence force of Saint Vincent and the Grenadines.”

However, they also believed that this resignation would not necessarily be permanent. This was because of an agreement that the SVG Teacher’s Union, which they were a part of, had entered into, with the Government, on November 3, 2015.

This was a Collective Bargaining Agreement (signed November 3, 2015), and it includes, article 16 which 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.”

Justice Brian Cottle ruled in February 2016, that the claim should be struck out, as it was “entirely hopeless.” The ruling was that article 16 was unconstitutional, and null and void.
Not willing to leave the matter there, the three teachers decided to appeal.

Fergusson, addressing the Chief Justice of the ESCS, Dame Janice M Pereira, Justice Davidson Kelvin Baptiste and Justice Gertel Thom, said, “This appeal is indeed a very unique one, in that the usual appeals and matters regarding the constitution, usually touch and concern the citizen praying the aid of the constitution to establish some fundamental(right) or other…in the instant case it’s the state that is praying the aid of the constitution for denying what we submit are legitimate benefits.”

Fergusson stated, “Article 16 does not offend the constitution. It does not offend s26(1) (d).” He stated that apart from text, that the judge before should have looked at context, and also that article 16 was not an amendment to the constitution.

He sought to differentiate simply contesting for elections, and actually sitting in Parliament as a member, noting that what article 16 was purporting to do was grant leave, a benefit.
Further, he submitted that a legitimate expectation had arisen, this being that the teachers should get election leave once they are qualified, and would be reinstated by way of a written agreement.

Lastly, he made a claim of bad faith on the part of the government, that refusing to reinstate the appellants to an equivalent course, “the actions of the respondents did not amount to mere negligence, but was a deliberate effort on their part, the appellants being members of the opposition, three experienced teachers, from both contesting the elections and to allow them to be reinstated to the public service.”

Counsels for the respondents (the Attorney General and the Public Service Commission) are Richard Williams and Danielle France.
Williams put forward, “One has to draw a legal distinction, because what they had applied for was for leave to be nominated as a candidate. They didn’t apply for leave to test the waters out, or campaign. They asked to leave to do a particular act.”

He stated that the way the law was set up meant that “you would be committing a criminal offence by filling out the form for (declaration to be nominated)” and that this speaks to the intentions of Parliament.

“Why therefore enter into an agreement which contains article 16?” Justice Baptiste asked.

“While doing the research for this case, I have seen maybe 50 to 75 cases, most of them from Trinidad, and the Privy Council, where the government and the Public Service Commission has made a myriad of mistakes over the years. They have misinterpreted laws over the years,” Williams replied.

After hearing all submissions, Chief Justice Pereira indicated that the decision would be reserved, to be given on a date fixed by the registrar.