Court rules ‘NDP teachers’ entitled to pension benefits

The ‘NDP teachers’ have won their appeal with the court ruling that the Government was unfair to them, they are entitled to pension benefits, and that damages are to be awarded for the breach of their property rights.

Justice of Appeal Kelvin Baptiste of the Eastern Caribbean Supreme Court (ECSC) penned the judgement that was published this Tuesday. Baptiste reversed a High Court decision of Justice Brian Cottle which struck out the claims of Elvis Daniel, Addison Thomas and Kenroy Johnson, teachers of over 30 years, and he held that Article 16 of a Collective Bargaining Agreement was not in violation of the Constitution.

Article 16 states, “A member of the union (St Vincent and the Grenadines Teachers’ 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 teachers had relied on this agreement entered into with the Government to contest the general elections of 2010, with the thought that they would be able to return to their jobs if they were unsuccessful.

The teachers, who ran on a ticket of the New Democratic Party (NDP) were not granted leave to contest the poll, so they resigned, but were unsuccessful in their bids to be elected.

Baptiste held that article 16 does not qualify a public servant to be elected as a Representative and that it only deals with the allowance of leave to contest an election, and therefore is not in violation of the intentions of the Constitution.

The relevant section under examination, Section 26 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 defence force of Saint Vincent and the Grenadines.”

“A provision granting leave to teachers, upon application, to contest a general election, does not qualify them to be elected to Parliament,” he noted, and that subsequently a provision, “speaking to the return to teaching posts or posts of equivalence in the public service, without loss of benefits, cannot be said to violate the Constitution.”

Baptiste also held, conversely to the lower court, that the Government had created a legitimate expectation on the part of the teachers by their actions.

The judge further noted, that s26 of the Constitution states that Parliament may take steps to make exceptions to the rules, yet this is the same section which was used to deny the expectation created by article 16 of the agreement.

“Neither the appellants nor their union could take such steps. There is no evidence on the record that such steps were even attempted. Alas! Instead of doing what was required and provided for by the Constitution, the Government invoked part of the same section of the Constitution to disappoint the expectation of the appellants. The Government acted with conspicuous and manifest unfairness towards the appellants,” he declared.

“It was reasonable for the appellants to rely on it (Article 16). They sought to rely on it to their detriment. It was unfair for the Government to resile from giving effect to the representation, thus frustrating the expectation,” Baptiste wrote.

However, Baptiste noted it was not within the powers of the court to order that the agreement be honoured.

“The circumstances of the appellants’ resignation from the teaching service in 2010, the length of time which has expired since their resignation, plus the court’s lack of competence to determine the needs and requirements of the public service would make it inappropriate to permit the appellants to invoke the principle of legitimate expectation to compel their reinstatement to the original post or post of equivalence in the public service,” he stated.

Further, he noted that on the evidence given, bad faith on the part of the Government could not be established.

The appellants had also stated that they had been deprived of their right to property, a fundamental right in the Constitution, which was upheld. They claimed that the Government’s failure to repost them to their original post or one of equivalent status robbed them of benefits, most importantly their pension.

“The appellants 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, as a mere declaration would not be adequate given the nature of the breach,” Baptiste ordered.

Costs were also ordered to be paid by the Attorney General, who is a respondent in the case alongside the Public Service Commission. They were represented by Richard Williams and Danielle France.
The lawyers for the three teachers were Ruggles Ferguson, and Shirlan ‘Zita’ Barnwell.

Chief Justice of the ECSC, Dame Janice Pereira and Justice of Appeal Gertel Thom concurred with their colleague’s ruling.