Pension rights and public employees

By *Jomo Sanga Thomas

(“Plain Talk” June 3, 2022)

The High Court of Grenada delivered a decision last month that has importance for all public workers in SVG. The pension of many public workers, including those at the port has been arbitrary changed thus resulting in much fewer benefits going to workers who have given decades of service to the Port Authority.

On 15th May 2019, the claimants filed an administrative claim for constitutional relief in which they ask for declarations and orders against the Government over what they contend is its refusal to pay pensions to public officers who joined the public service after enacting the National Insurance Act (NIS Act) on April 4, 1983. The public officers claim that they ought to be paid in accordance with the Pensions Acts that existed prior to the commencement date of the Constitution. In response, the Government states that only public officers appointed before Feb. 22, 1985 are entitled to those pension benefits as contained in the Pensions Act.

Counsel for the workers argued that the applicable law in respect of pension benefits for public officers entering the service after Feb. 7, 1974 (Grenada Independence day) is the law in force on the date of commencement of the service. Whatever pension benefits one is entitled to are based on the law in force on the date upon entry into the service. For a later law to apply, it must make those benefits more, but not less favourable.

There was an interesting issue as to whether the pension rights envisaged by the constitution are similar or identical to the pension rights created by the creation of the National Insurance Service.

Justice Raulston Glasgow ruled that “once the law is in place, the Government cannot enact any other law that grants benefits that are less favourable to the public worker than the law which was enacted and was extant at the date that they commenced their service”.

This is an important decision not just for Grenada but also because of its binding authority in St. Vincent and other countries where the Eastern Caribbean Supreme Court presides. Prime Minister Keith Mitchell of Grenada declared that his government has no intention of appealing the decision.

Section 88 of our Constitution deals with pensions. The section labelled Pensions laws and protection of pensions rights.

88. (1) The law to be applied with respect to any pensions benefits that were granted to any person before the commencement of this Constitution shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is no less favourable to that person.

(2) The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) of this section applies) shall in so far as those benefits are wholly in respect of a period of service as a judge or officer of the Supreme Court or a public officer or a member of the House of Assembly that commenced before the commencement of this Constitution, be the law that was in force at such commencement; and b. in so far as those benefits are wholly or partly in respect of a period of service as a judge or officer of the Supreme Court or a public officer or a member of the House of Assembly that commenced after the commencement of this Constitution, be the law in force on the date on which that period of service commenced or any law in force at a later date that is no less favourable to that person.

(3) Where a person is entitled to exercise an option as to which of two or more laws shall apply in his case, the law for which he opts shall, for the purposes of this section, be deemed to be more favourable to him than the other law or laws.

The law is clear, and the decision by the Grenada court has reaffirmed it. A public employee’s entitlement to pension cannot be determined or calculated to his detriment. It must be calculated according to the pension laws most favourable to him.

Therefore, when the government established the Port Authority as a statutory corporation and, among other things, allowed the board of directors to arbitrarily change the pension entitlement of port employees, it engaged in an illegality that is confirmed by the recent decision in Grenada.

As a result of the collusion of the port workers’ representative, National Workers Movement, led by Noel Jackson, workers lost tens of thousands of dollars in pension benefits at retirement. In 2008, the union negotiated a contract that took employees out of the constitutionally protected pension plan. The Port Authority established a pension plan that drastically reduced the benefits to which long-standing employees were entitled.

Other public employees, apart from those working on the port may have been forced to sign on to pension schemes that strip them of their full pension benefits. All historical wrongs must be corrected.

Our Constitution says that the pension scheme developed by the government or its bodies cannot be less favourable to the workers. This position is vindicated in the Grenada case.

In light of this recent binding decision, the government should heed and instruct itself and the many statutory boards and authorities to bring their pension policies in line with the constitutional requirements. Any other posture will amount to gross injustice to workers who have given yeoman service to this nation and are now being short-changed by the government they served.

*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former Speaker of the House of Assembly in St. Vincent and the Grenadines.

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