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.
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.”