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Appeals Court Settles Issue Between CSA and LUCELEC

Image of LUCELEC Castries offices

The Appeals Court of the Eastern Caribbean has settled a long running labour issue between the Saint Lucia Civil Service Association (CSA) and Saint Lucia Electricity Service Limited (LUCELEC).

It was an issue that also involved the Labour Tribunal, which was party to the case brought on by the CSA at the Appeals Court level. However, Chief Justice Janice Pereira deemed the tribunal’s involvement, or being made a party to the claims before the High Court, as inappropriate.

Chief Justice Dame Janice Pereira.

This matter started when LUCELEC, by letter dated 2 February, 2016 wrote to David Rodgers concerning his retirement under the company’s Private Pension Scheme (PPS). Rodgers challenged the calculation of his pension and appointed Barthelmy Fedee to represent his interests.

LUCELEC was subsequently informed by the Labour Commissioner that their policy of retiring employees at age 60 violated the labour legislation. The company, in response requested that the matter be referred to the Labour Tribunal, a referral which was done by the Minister of Labour by letter dated 4 April 2017.

The Tribunal, having heard the matter, concluded that the Labour Act, which  provides in section 159  that  the  pensionable  age  is  deemed  to  be  65 in accordance with the National Insurance Corporation Act applied to all employees including those who were in LUCELEC’s employment before 1st August 2012, the day the Act came into force. Accordingly, LUCELEC was bound to retire those employees at 65 rather than the retirement age of 60 in their PPS.

LUCELEC, aggrieved by the Tribunal’s decision, filed a claim for judicial review seeking a number of orders on 10 October 2018.  The judge, having heard the submissions of attorneys for parties found in favour of LUCELEC and quashed the decision of the Tribunal; granted a declaration that the retirement age for employees who entered service prior to 1 August, 2012 who are subject to LUCELEC’s Grade 1 PPS is 60; and granted a declaration that LUCELEC had no obligation to make future contributions to the PPS on behalf of those said employees.

The Tribunal and the CSA were dissatisfied with the decision of the judge and filed a number of grounds of appeal against the judge’s reasoning and conclusion.

The Appeals Court had to determine whether the High Court judge erred in the construction of section 22 of the Labour Act, concluding that section 159 of the Labour Act did not increase the retirement age for employees.

The Appeals Court, in the end, dismissed both the Tribunal and the CSA appeals against the judgement of the High Court.

However Chief Justice Pereira had something to say about the Tribunal being a party of the claims in the High Court.

“I have read in draft the judgment of my learned sister Blenman JA.  I am in agreement with her reasoning and conclusion that these appeals be dismissed. I wish  however  to  make  an  observation  in  respect  of  the  parties  to these  claims  and  these  appeals  and  more  specifically with  reference  to  the  fact that the Labour Tribunal, established under the Labour Act 29 was made a party, in  my  view  inappropriately, to  the claims before the High Court,” Pereira said.

She went on to explain why the Tribunal may have found itself an active appellant in the appeals.

“It may well be that the confusion of proper parties to the claim arose because of the language used in section 448 of the Labour Act, which states that “any party to an application … before the Tribunal shall be entitled to apply to the High Court for judicial review in respect of any decision of the Tribunal…”.

According to the Chief Justice, when  sections 448  and  449 are construed  in  the  context  and  scheme  of  the Labour Act, it becomes apparent that the term ‘judicial review’ is not intended in this context to engage the regime of public law proceedings which attracts judicial review of actions which may be said to be unlawful, unreasonable or procedurally improper.

“It is merely a venue for a rehearing or review of the decision arrived at by the  Tribunal in  the  same  way  as, say the Court  of Appeal  may  review  a decision of a magistrate, a judge of the High Court or for example another court. The Industrial  Court  of  the  State  of  Antigua  and  Barbuda  comes  to  mind. In nature, the  process  is more  analogous  to an  appeal  from a  body  such  as  the Tribunal  tasked  under  the  act with  quasi–judicial  functions or  indeed  any  other body  tasked  with  quasi-judicial  functions  where an  enactment  provides  an avenue  of  appeal  whether  to  the  High  Court  or  Court  of  Appeal  in  respect  of decisions reached by them in deciding a dispute arising in matters regulated by a particular statutory regime such as labour relations,” Pereira said.

She stated that the proper parties to the dispute, as they were before the Labour Tribunal, were the  St. Lucia  Civil  Service Association, representing the category of employees of LUCELEC who were challenging the retirement age under their PPS with their employer LUCELEC, on the one hand, and LUCELEC on  the  other.

“The  Appeal, SLUHCVAP2019/0002, brought  by  the  Labour Tribunal, is  in  my  view  akin  to a magistrate appealing  to  the  Court  of  Appeal because a High Court judge reversed a decision of a magistrate in say a decision on  bail;  or  a  high  court  judge  appealing  to  the  Judicial Committee  of  the  Privy Council or the Caribbean Court of Justice, as the case may be because the Court of Appeal has reversed the High Court judge’s decision. This,  in my view, is not  the  approach  which  is contemplated  by  the  process  of  review envisaged under  the Labour  Act and is  not  one to be  encouraged. Indeed, it  places  the Tribunal, which itself was being asked to adjudicate on an issue between parties holding differing views, as a protagonist in the dispute favouring one side over the other. This  is  not the  position in which  such  a  Tribunal  should find  itself nor be seen to be  so doing,” Pereira said.

She added, “It is hoped that  in  the  future  such  applications to  the  High Court under section 448 of the Labour Act will not join the Labour Tribunal as a party to the proceedings.”

 

 

 

 

 

Micah George is an established name in the journalism landscape in St. Lucia. He started his journalism tutelage under the critical eye of the Star Newspaper Publisher and well known journalist, Rick Wayne, as a freelancer. A few months later he moved to the Voice Newspaper under the guidance of the paper’s recognized editor, Guy Ellis in 1988.

Since then he has remained with the Voice Newspaper, progressing from a cub reporter covering court cases and the police to a senior journalist with a focus on parliamentary issues, government and politics. Read full bio...

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