BIDC ruling at month end
After a threatened national strike last year, the unsuccessful intervention of Minister of Labour Dr Esther Byer-Suckoo and a court case, the disputed retirement of workers by the state-run Barbados Investment and Development Corporation (BIDC) will finally be laid to rest later this month.
Following a more-than-four-hour sitting of the Number 5 High Court today, Justice Jacqueline Cornelius announced her intention to rule on the lawfulness of the BIDC’s decision to compulsorily retire those workers over age 60.
After hearing the final submissions of attorneys Gregory Nicholls for the affected BIDC employees and Michael Yearwood for the BIDC, Justice Cornelius said she intended to deliver an oral decision before the end of March.
In his closing argument which lasted just over one hour, Yearwood took exception to a number of issues outlined in Nicholls’ written submission which had been previously lodged with the court.
Yearwood rejected as baseless, the attorney’s request for a remedy that would effectively quash the BIDC’s decision “to voluntarily retire the claimants under provisions of the Statutory Board’s Pension Act”.
“Even in judicial review matters as well as in other matters, you always follow the principle that the court doesn’t act in vain,” he said.
Yearwood further argued that even if the court were to find in favour of the claimants, it still had the power to withhold a remedy, if that remedy had no real effect.
He also addressed the issue of damages which the claimants are seeking, contending that no evidence was presented to satisfy the judge that such should be granted.
“At this stage, any question of damages to be dealt with, muh lady, it was hoping that my learned friend, having not done so [raised liability at case management], having not led the evidence on the issue of damages to allow this court to quantify damages, I say, muh lady, that even if you find in favour of the claimants, that this court would be constrained to awarding any damages.”
He also responded to the claimants’ lawyer whose written submission suggested a conflict between the actions of the corporation and the policy of the Statutory Board Pensions Act. Yearwood told the court that while the purpose of the Act was to ensure that workers at statutory boards received a pension, it did not guarantee such payments.
He said there was nothing special about this Act for the protection of citizens.
In his over two-hour response, Nicholls insisted that this case did not concern the appropriateness of the board’s policy options. He contended it had to do with the “unlawfulness of a statutory discretion” used in a very particular circumstance to achieve a purpose “which we contend is not permissible in law”.
Nicholls said the decision of the corporation to compulsorily retire workers over 60 was an improper action, adding that the discretion given to the BIDC’s board did not extend to addressing such economic consequences.
He also submitted that the discretion given by Parliament to statutory entities was not an open-ended one so that public officers could abuse it. He told the judge that the BIDC sent home the workers without considering their individual circumstances and without consulting with them.
Nicholls noted that where a statutory corporation was afforded discretion to take a particular action, it ought to refer to the appropriate legislation to see how that discretion was exercised.
He also accused the BIDC of withholding evidence regarding the real reason for sending home the employees, pointing out that neither in its correspondence with the workers nor their bargaining agent, the National Union of Public Workers (NUPW), had the corporation attributed financial constraints to the forced retirement of its staff.
In ending his oral submission, Nicholls noted that the grounds for judicial review had been made out and the claimants were seeking a declaration that the retirements were null and void; an order to quash the BIDC board’s decision and damages equivalent to the pecuniary loss brought on by the “unlawful” decision to retire the workers.
The claimants are also seeking reinstatement and compensation.
Attending today’s hearing were NUPW General Secretary Roslyn Smith and President Akanni McDowall. (EJ)