Dispute between BIDC and NUPW ends up in court
The dubiously settled dispute between the state-owned Barbados Investment and Development Corporation (BIDC) and the National Union of Public Workers (NUPW) has ended up in the law courts after all, with the corporation being sued for damages and costs.
One week after the BIDC and the NUPW agreed during a sub-committee meeting of the Social Partnership that the impasse would not be referred to the court, the corporation and seven of the ten workers who were “forcibly” retired have filed separate actions in the High Court in the past 24 hours.
Yesterday, attorney for the seven, Gregory Nicholls, lodged an action for judicial review of the BIDC’s decision to retire officers over age 60.
“I have also applied for an injunction to restrain the BIDC from acting on the said decision to retire the officers, and this application for the injunction comes on for hearing before the duty judge next week Tuesday at 9.30 a.m.,” Nicholls told Barbados TODAY this afternoon.
The notice of application for the interim injunction – a copy of which has been obtained by this paper – is requesting that the court issue an order restraining the BIDC from enforcing the retirement of the employees with effect from 30 September, 2015, or otherwise, until the conclusion of the substantive proceedings for judicial review or further order of the court.
The court document, which names Attorney-General Adriel Brathwaite as second defendant, also wants the presiding judge to rule that the “retirees” be allowed to continue in their jobs until the court makes a determination.
The seven claimants have outlined six grounds on which their case is based.
One ground alleges that the process which resulted in the decision to compulsorily retire them from the BIDC was unlawful, in that the statutory board exercised its discretion unreasonably in breach of the policy of an Act of Parliament, “and in a manner which has dashed the legitimate expectations of the claimants.”
The claimants are also contending that, having regard to their retirement becoming effective 30 September, they were likely to suffer adversely in the interim, unless the interim injunction relief is granted by the court.
They are also submitting that BIDC was unlikely to suffer any loss or prejudice in the event that the injunction remedy is ordered.
“The purported retirement of the claimants from the Public Service is not a necessary requirement for the proper and efficient conduct of the business of the First Defendant (BIDC),” declared the final ground.
With respect to the application for judicial review, which is the substantive matter, the seven workers have also named the Attorney General as the second defendant. They want a review of the corporation’s decision and/or administrative action, and/or its omission to compulsorily retire them.
The claimants argue that the statutory board had not given them any, or any satisfactory reason, why its directors opted to “forcibly” retire them before they had reached the age of compulsory retirement as prescribed under the provisions of the amended Statutory Boards (Pensions) Act, Cap.384 of the Laws of Barbados.
The application lists five grounds of judicial review. That the decision to compulsorily retire the staffers was contrary to law; unreasonable; irregular; an improper exercise of discretion and in conflict with the policy of Acts of Parliament.
In this regard, the affected workers will be seeking relief from the High Court in the form of financial damages and costs occasioned by this action.
Alternatively, they want the court to quash the decision of the board of directors and to declare their decision to compulsorily retire them and to calculate or purport to process and calculate the gratuity and pensions due as unlawful, null, void and of no legal effect.
Today, the BIDC lodged a related application seeking the court’s opinion of the legality of the board’s decision to retire the 10 workers.
Chief Executive Officer Sonja Trotman confirmed that the application was filed. “We will await the decision of the court,” she said. “We couldn’t really say what will happen at the end of it, but we would hope that it would provide clear direction,” Trotman added.
She acknowledged that once the filing was done it might not necessarily be the end of the impasse, but quickly pointed out that “the court would determine the next action, actually”.
The BIDC’s decision to retire the officers resulted in protest action by the NUPW, with support from the Barbados Workers Union (BWU). The protest was on the verge of escalation into a national shutdown when a meeting of the sub-committee of the Social Partnership, held under the chairmanship of Minister of Labour Dr Esther Byer last Tuesday, produced a settlement that led to a suspension of the protest.
The unions said they came away from that meeting with an understanding that the corporation had withdrawn the letters of retirement, had reinstated the workers and had abandoned an earlier decision to have the court interpret the contentious aspect of the law under which the BIDC had retired them.
However, both BIDC chairman Benson Straker and Minister Byer challenged the unions’ interpretation of their offer to end the dispute, noting that it was not correct to say the letters had been withdrawn, only that the board had decided “not to act” on them, but to meet soon again to try to resolve the impasse.
Since that time, the Private Sector Association of Barbados has written the Minister asking for a re-convening of the Social Partnership to clarify the misunderstanding regarding the perceived settlement.