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School teacher loses case against NNP regime

High Court judge Justice Raulston Glasgow – handed down the judgement against the school teacher

Secondary school teacher Donna Lusan has failed in her efforts to get a high court judge to rule against the decision taken by the former New National Party (NNP) government of Dr. Keith Mitchell to make deductions from the salaries of striking public officers during his term in office.

Lusan was the only public officer to approach the court to challenge the decision of the last government to withhold a portion of their salaries for taking strike action on the Pension issue.

Months later, the sitting judge Justice Raulston Glasgow delivered a landmark judgment against the Mitchell regime and in favour of public officers that they were entitled to receive a State pension in keeping with the requirements of the Grenada Constitution.

Appearing for Lusan in the matter was Benjamin Hood, the son of former Attorney General Cajeton Hood while the State retained Trinidad attorney-at-law Douglass Mendes, SC to put forward its case.

Prior to his ruling, Glasgow said that he had often dropped hints to Attorney Hood that he was facing an uphill task in the case.

Following is the Glasgow judgment on the matter:

JUDGMENT
[1] GLASGOW, J.: The claimant has asked the court to examine whether the Government of Grenada (“the government”) is lawfully entitled to withhold remuneration from public officers who absented themselves from work as a result of industrial action.

Background
[2] The claimant, Donna Marcelle Lusan (Ms. Lusan) is a teacher and a public officer who is assigned to the St. Joseph’s Convent, St. George. These proceedings arise from industrial action between the the Government and trade unions (“the unions”) which represent officers in the public service, including teachers. . The unions took industrial action to demand payment of pensions and gratuity to public officers.

[3] During the month of November 2018, the unions issued a call to their membership to take industrial action and to absent themselves from work on 5th, 7th, 12th, 13th 14th, 15th and 19th to 22nd November, 2018. Public officers, including teachers, heeded this call from the unions and remained absent from work on those days. St. Joseph’s Convent St. George’s Principal, Mrs. Jill Viechweg Philbert, in her evidence1 on behalf of the defendants claims that Ms. Lusan was absent from work at the school on 5th, 7th, 12th, 13th and 14th November, 2018. Ms. Lusan in her evidence2 in response asserts that she attended work on the above days, but left subsequently after she noticed that there were “no activities” at the school on those days.

[4] On 13th November 2018, the Government through the Secretary to the Cabinet, Ms. Beryl Isaac, issued a circular to Permanent Secretaries and Heads of Department directing them “to take such steps as are necessary to ensure that the appropriate deduction is made from the salary of those public service employees, including teachers who have withheld their labour on the day(s) mentioned or any other day for the aforementioned purpose”. Ms. Lusan claims that the Government deducted the sum of $1,238.70 from her salary for the month of November 2018.

[5] Being dissatisfied with the deductions made to her salary for the month of November 2018, Ms. Lusan filed these proceedings against the defendants claiming that the Government, that is the Cabinet, acted outside of its lawful authority when it directed the deductions to be made from her salary. Ms. Lusan in her claim seeks declarations and a return of property (“deducted salary”), in accordance with the provisions of the Constitution of Grenada, among other relief. The defendants in response to the claim assert that the Government is entitled to refuse to pay Ms. Lusan for days on which she remained absent from work based on the common law principle of “no work, no pay”. During the case management of the proceedings, the court took the view that the outcome of this claim turns on the applicability of that common law principle to this case. The question is therefore to be considered as a preliminary issue.

[6] However, before this court ruled on the preliminary issue, general elections were held in the State of Grenada on 23rd June 2022 and a new administration formed the Government. The new Government promised to return the deducted salaries to the teachers and public officers at the end of July 2022. On 2nd August 2022, the court held a further case management of the matter where the parties confirmed that the Government paid the teachers including Ms. Lusan, the moneys that were deducted from the salaries during the period in question. At the further case management, the parties indicated to the court that they briefly held talks with a view to settling the claim but those talks did not lead to a resolution. The issue of whether Ms. Lusan should be reimbursed her salary has therefore been addressed and does not form any part of this ruling. My sense at the further case management was that the parties have not resolved whether the state was right to deduct the sums in the first place. I say this because their posture at the further case management was that they have not settled any other issue besides payment of the deducted salary.

Claimant’s submissions
[7] Counsel for Ms. Lusan, Mr. Benjamin Hood, submits that the only manner in which emoluments attached to a public office can be changed is –

(1) through Parliamentary action; or

(2) through disciplinary proceedings instituted by the Public Service Commission (PSC) or any other person or body who has been so designated by the PSC in accordance with sections 74 and 85 of the Public Service Commission’s Regulations (PSC Regulations).

[8] Mr. Hood further submits that section 74 of the PSC Regulations establishes a code which governs Ms. Lusan’s conduct as a public officer. Counsel views the directives from the Government instructing that moneys should be deducted from Ms. Lusan’s pay as disciplinary actions that ought to have formed the subject of proceedings initiated by the PSC. To the extent that they were no proceedings brought by the PSC before Ms. Lusan was paid a reduced salary, Counsel says that the actions of the Government were illegal and contrary to the Constitution.

[9] With respect to the common law principle of “no work, no pay”, Mr. Hood argues that this principle is not applicable in this case for the following reasons:

(1) The law as expounded in the case of Sykes v Minister of National Security et al3 and relied on by the defendants is founded in the common law and cannot supersede any statutory provisions in the state of Grenada. Further, Mr. Hood submits that even if the common law principle was incorporated into local legislation it has to conform to the Constitution. Counsel relies on the case of Rosemond John v The Permanent Secretary Ministry of Education4. In that case, the Court of Appeal held that the manner in which the “no work, no pay” principle was passed contravened the Constitution and was held to be unconstitutional.

(2) The common law principle only applies to contracts of employment over which the common law has jurisdiction. Ms. Lusan has tenure in the public service and as such the payment of her emoluments is not governed by the common law principle.

(3) The Sykes decision is distinguishable from this case since the common law principle has not been incorporated into the PSC Regulations or any statute in Grenada.

(4) Section 54 of the PSC Regulations already makes provision for discipline in circumstances where public officers remain absent from work without excuse.

(5) Additionally, the case of Miles v Wakefield Metropolitan District Council5 can also be distinguished from this case. In Wakefield, it was established that the salary paid to the respondent (Miles) had the character of remuneration for work done, in that the salary paid to him was specifically for 37 hours of work. Mr. Hood states that this is not the case with Ms. Lusan’s appointment within the public service.

(6) Part IX of the PSC Regulations recognises the difference between tenured works such as Ms. Lusan and regular employees. In respect of regular employees the common law principle may be applicable.

Defendants’ submissions
[10] Counsel for the defendants, Mr. Douglas Mendes, SC disputes the accuracy of Ms. Lusan’s arguments as to the nature of her terms and conditions of employment as a public officer. Mr Mendes SC submits that what happened in this case is that Ms. Lusan was not paid for the days she did not work. Counsel argues that Ms. Lusan’s reliance on the Privy Council decision in Gladwyn King v Attorney General of Barbados is misplaced. Counsel states that there is nothing in sections 76 or 77 of the Constitution which creates an entitlement for public officers to be paid their salaries. Those obligations to pay salaries are based on contract or by law requiring the Government to prepare annual estimates to authorise withdrawals from the consolidated fund to make those payments.

[11] Mr. Mendes SC explains that the opinion expressed by Redhead JA in Rosemond John v Permanent Secretary no longer represents the law on whether the Government can withhold pay for persons who are on strike and do not show up for work. Counsel observes that Redhead JA referenced the Court of Appeal’s judgment in Wakefield, however, counsel points out that the Court of Appeal’s decision in Wakefield was overturned by the House of Lords. Further, the Rosemond decision was rendered before the Privy Council delivered its judgment in Sykes v Minister of National Security and Justice. Therefore, counsel submits that this court is obliged to follow the dicta of the Privy Council in Sykes.

Related:  The battle over property – Part III

[12] Counsel, Mr. Mendes rejects Mr. Hood’s proposition that the Sykes decision can be distinguished because the “no work, no pay” principle was not incorporated into the laws of Grenada. Counsel counters this view by pointing out that the court in Sykes expressly stated at page 416 f-h of the judgment that the staff orders on the issue of “no work, no pay” was merely a codification of the common law.

[13] With respect to Ms. Lusan’s arguments that the Wakefield decision is distinguishable, learned Senior Counsel submits that there is nothing in that case which suggests that the principle of law “no work, no pay” was applied based on the specific stipulation that the work week was 37 hours. Counsel relies on passages from Lord Brightman at pages 1092-1093; Lord Templeman at page 1098 and Lord Oliver at pages 1105-1106.

[14] Moreover, Mr. Mendes SC rejects Ms. Lusan’s arguments that the “no work, no pay” principle is not applicable to her since she is a “tenured worker” and not a “regular employee”. Counsel submits that the decision in Wakefield already determined that the common law principle applied to employees appointed to an office or on ordinary contract and relies on Lord Templeman’s dictum at page 1095 of the judgment, that “…there is no logical distinction between a superintendent registrar who is paid a weekly salary for a 37-hour week and a municipal dustman who is paid a weekly wage for a 37-hour week if both are on strike, both are supported by their unions and both claim from the council payment in full of their salary and wages for the duration of the strike.”

Discussion and Analysis
[15] It seems to me that the fact that the Government has paid Ms. Lusan the sums withheld from her salary renders any debate in this case rather academic. Nonetheless, as I have stated above, at the further case management I was left with the impression that the parties are still at loggerheads on whether the Government had the right to deduct the money in the first place. Having regard to the history of this matter and what I think is by now the trite law applicable, I fear that the remaining issue ought to be shortly disposed of.

[16] My view is that the entire case for Ms. Lusan is based on what I have concluded are erroneous assumptions made by Ms. Lusan about the basis on which the Government deducted sums from her salary. In this context, Ms. Lusan has frontally charged that the Government could only deduct sums from her salary –

(1) if Parliament approved an adjustment to the salaries of civil servants generally or specifically in her case; or

(2) after the PSC heard charges of misconduct against her and made a finding of misconduct coupled with a sanction that she should be paid a reduced salary.

[17] I fear that Ms. Lusan is wrong in all these assumptions. I start with the basic law as stated in Thomas v AG9 about the relationship of the public servants with the Government and the relationship of the public servant with the PSC. The dicta in Thomas makes it plain that the PSC is an autonomous body set up by the constitution and is tasked with the exclusive constitutional power to appoint, discipline, transfer, promote and remove public servants from public office. The Privy Council in Thomas11 explained further that the PSC’s powers do not extend to the determination of terms and conditions of service of the public servant. Those matters remain the subject of a contract of employment between employer (the Government) and the employee (in this case Ms. Lusan).

[18] I think that Ms. Lusan agrees with my analysis of the law up to this point. But then we part ways here. Ms. Lusan says that the terms and conditions of her contract do not incorporate the principle that the employer can deduct sums for the days that she did not work. That rule, she posits, is a common law rule. And the terms of the PSC Regulations are a matter of law which override that rule. Indeed for that rule to apply, it must be specifically incorporated into the laws of Grenada as it was incorporated into the Staff Orders of Jamaica. The fact that the common law rule is not encoded in the laws of Grenada or more specifically, the PSC Regulations means that it is excluded. Or to the extent that it can be said to be impliedly inserted into the PSC Regulations, it does not apply to the category of workers into which she falls. The only regime for deducting salary would be if Parliament approves the same or if the PSC institutes disciplinary charges resulting in a finding of misconduct on her part.

[19] I disagree. As I have stated above it is now beyond trite that the common law rule of no work, no pay applies to the terms and conditions of the contract of employment of public servants. In fact the Privy Council has said so in Sykes. The Privy Council is our final court of appeal. Therefore it does not need restating that I am constrained to follow the pronouncements made on the law from that court in Sykes unless Ms. Lusan can show this court how the ruling is distinguishable and should not be applied in this case.

[20] So what is the state of the law as stated by the Privy Council? In Sykes, as in this case, civil servants took industrial actions against their employer, the Government of Jamaica, due to disagreements about emoluments. The Government of Jamaica, like the Government in this case, directed that the salary for the days that the public officers in that case did not work should be deducted from the salary that would be normally due. As, in this case, the affected employee(s) brought a claim against the Government of Jamaica wherein they contended, as Ms. Lusan in this claim, that the State could not properly deduct moneys from their salaries except where the PSC in Jamaica initiated disciplinary proceedings against them. The arguments were rejected by the Privy Council. Specifically and of particular binding relevance to this case, the Privy Council ruled at page 416 of the judgment that

“…the withholding of a part of salary attributable to a period in which, in breach of contract, no work has been done is in accordance with common law and in accordance with the contract of employment between the parties.”

[21] It seems to me then that the foregoing binding dictum alone ought to have ended the debate in this case about whether the common law rule of “no work no pay” applies to the public servant’s contract of employment.

Additionally, it ought to have been clear that, as the defendants correctly point out, Ms. Lusan’s reliance on the Rosemond John decision is misplaced. The defendants rightly state that the Rosemond John case was decided before the Privy Council’s pronouncement on the law in Sykes and as such this court is bound to follow the learning stated in Sykes.

[22] Ms. Lusan however states that Sykes decision is further distinguishable because there was a specific provision in the Staff Orders in Jamaica which incorporated the common law principle of “no work, no pay”. In Grenada, Ms. Lusan, claims there is no such provision in the PSC Regulations in Grenada. Firstly, I cannot see how the absence of the written rule means that it is excluded from the contract of employment. There is no suggestion in the PSC Regulations or anywhere else that the PSC Regulations form the entirety of the terms and conditions governing the relationship between the public servants and the Government as employers. Secondly, the Privy Council noted that the inclusion of the rule in the Jamaica Staff Orders was, in essence, a mere codification of the common law rule. Their Lordships observed that the rule in the Staff Order in that case “… expresses the common law.”

[23] I think that Ms. Lusan’s arguments, with respect, seek to elevate the relationship between the PSC and the public servants above that of the relationship between the public servants and the Government. The correlation between the two has been adequately elucidated in Thomas and needs no pedantic repetition here. The PSC’s powers do not supplant or replace the terms and conditions of employment that exist between the Government and public servant except in so far as the Constitution dictates. Thomas explains that, outside the constitutional construct regarding the PSC, there are obligations arising from employer to employee and vice versa. These are the terms and conditions of employments. Basic among them I would think and as explained in Wakefield is the employee’s obligation to turn up to work on the contracted days for service and to execute their contracted duties. Basic to this relationship or the terms and conditions thereof is the employer’s obligation to pay the employee for the days worked. Lord Templeman in Wakefield states the law more than adequately when he expounded that –

(To be Continued)

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