The Court of Appeal has ruled that the election leave provision of the collective bargaining agreement that the Ralph Gonsalves government signed with the St. Vincent and the Grenadines Teachers’ Unions in 2005 is not unconstitutional, as the prime minister later claimed.
The court also ruled on Tuesday that the three teachers who the government did not rehire after they were forced to quit their job at the last moment to contest the 2010 general elections, must be paid their pension.
The SVGTU had filed the
case on behalf of the three teachers — Addison “Bash” Thomas, Kenroy Johnson,
and Elvis Daniel — who contested the 2010 elections on behalf of the main
opposition New Democratic Party.
The government did not rehire the teachers, all of whom lost at the poll.
The union decided to challenge the matter in court, but High Court judge, Justice Brian Cottle, dismissed the case even before a trial, saying that the union’s case was “entirely hopeless”.
Justice Cottle had said in his Feb. 10, 2018 ruling:
“When I consider the competing arguments as well as my understanding of the governing legal principles, I am driven to the conclusion that the claimants cannot succeed. It may be that the present constitutional provisions are too restrictive and some of provisions along the lines of that set out in Article 16 of the Agreement is desirable.”
Justice Cottle had further said that the matter is one “for constitutional reform and not for this court”.
“The claim is accordingly struck out as entirely hopeless,” the judge ruled.
But in a decision handed down in St. Kitts and Nevis today (Tuesday) the Court of Appeal said that Justice Cottle erred in making that decision.
The higher court ruled that the claimants had a legitimate expectation of success, saying that the government, in signing the collective bargaining agreement, committed itself to grant no-pay leave to qualifying teachers to contest elections and to reinstate them if they are unsuccessful.
Article 16 of the Agreement says that a member of the Union of at least three years standing shall, on application, be granted leave-of-absence to contest national/general/local elections.
The leave shall be no-pay leave for not more than six months.
In the event that the member is unsuccessful in the elections, they shall return to their original post or one of equivalent status, all benefits intact.
The Article further said that the resumption of duty must be at the beginning of a school term.
The agreement was signed on behalf of the Government of SVG by then Permanent Secretary in the Ministry of Education, Laura Browne and then Minister of Education, Clayton Burgin, and was witnessed by Gonsalves.
Then union leader, Otto Sam and General Secretary, Joy Matthews signed on behalf of the Teachers’ Union.
The appeal court further ruled that the relevant section of the collective bargaining agreement was clear, unambiguous, devoid of qualification.
It, however, said that it could not order that the teachers be reinstated because in doing so, it would be vesting the court with an executive function.
The matter was remitted to the High Court for reassessment and for costs to be assessed if not agreed by the parties.
The Gonsalves government had singled out Article 16 for praise as a victory for participatory democracy in SVG, saying it was embracing and allows for more qualified persons to offer themselves as parliamentary representatives.
After the announcement, in November 2010, of the Dec. 13, 2010 general elections, the three teachers, relying on Article 16, applied to the Public Service Commission (PSC) for election leave.
The application was neither granted nor refused, but the PSC reverted to Section 26(1)(d) of the Constitution of SVG and invited a response.
Section 26(1)(d) of the Constitution speaks to disqualifications for representatives and senators and says:
“No person shall be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a member) if he … 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”.
The PSC’s letter to the teachers was dated Nov. 23. 2010 — three days before Nomination Day.
The three teachers resigned their positions and contested the elections, but lost.
They re-applied to the PSC for reinstatement as teachers but were told that no vacancies existed at the time.
The three teachers, plus Oswald Robinson, president of the Teachers’ Union, brought the claim seeking a declaration that Article 16 of the Collective Agreement between the Government and the Teachers’ Union does not offend Section 26(1)(d) of the Constitution of SVG.
The claimants also sought a declaration by the court that the Government acted in bad faith in refusing to grant the leave requested by the teachers to contest the elections, thereby forcing them to resign their teaching post. The union’s case was presented by Jomo Thomas Chambers.
The union’s case was presented by Jomo Thomas Chambers.