Sen. Kim George: Public officers are not constitutionally entitled to pensions

Government Senator, Kim George, who is an Attorney-at-Law by profession, has given support to claims made by Prime Minister Dr. Keith Mitchell that there is no provisions in the Grenada Constitution providing for guaranteed pension for public officers.

Government Senator, Kim George

Addressing the Upper House of Parliament at Parliament Building at Mt. Wheldale, St. George in the 2019 Budget debate, Sen. George said that according to the law governing the distribution of pensions, public officers are not entitled to a pension as it is being branded about by the Public Sector Unions in their fight for 25% pensions and gratuity payments with the Mitchell-led government.

She based her conclusions on the findings by the law courts in the Irvin McQueen and Hermilyn Armstrong cases and the conditions under which pensions were awarded to them by the State.

“The view which I have heard addressed that there is a constitutional guarantee of the 25% gratuity as it were referred to based on the interpretation of the Irvin Mc Queen case, and I have taken the time, Mr. President, myself to read the relevant provisions of the constitution, to read the Armstrong case and to read the Mc Queen case myself, I have also taken the time to read the Pensions Disqualifications Act and the Pensions Act and for present purposes there are three sections of the constitution that deal with pensions; that is section 84, sub-section 8, section 92 and section 93 and I think it’s important to note that neither of these sections speak to the intricacies of awarding pensions or provide a formula for calculations of pension”, she said.

According to Sen. George, Section 92 of the constitution simply enshrines the start date for calculating pension benefits giving constitutional protection to the date which should be used when a pension is being considered or calculated.

“Section 92 sub rule 1 says that the law to be applied with respect to any pension benefits that were granted to any person before this section comes into operation shall be the law that was enforced at, the date on which those benefits were granted or any law enforced at a later date that is not less favourable to that persons.

“The 92-2 says the law to be applied with respect to any pension benefits, not being benefits to sub section 1 of this section applied, shall (a)..in so far as those benefits are wholly in respect to a period of service as a judge or public officer that commence before the date upon which this section comes into operation, be the law that was enforced on the date upon which this section comes into operation and (b) says in so far as those benefits are wholly or partially in respect of a period of service as a judge or public officer that commence after this section comes into operation, be the law enforced on the date on which that period of service commenced or any law enforced at a later date that is not less favourable to that person and then it continues to speak to the exercise of an option as to which of the two is in the best interest of the public officer.”

Sen. George stated that her understanding of the issue now causing friction between government and the public sector unions is that there is no guarantee of pensions for public officers.

She said: “I do not read it to entrench the right to a pension and I certainly do not understand it to guarantee a pension at infinitum or forever but it is distinct from section 84 sub section 8, which is the section that (was) considered and dealt with (in) the McQueen case and what that does is entrench the right to a pension but only in a limited sense and I think it’s important as well to read the provisions of subsection 84…”, she said.

“…It says every officer who is required to retire, on abolition of his office or for the purpose of reorganisation of his ministry or department shall be entitled to pension and retiring benefits as if he had retained the compulsory retiree age. So, it is evident immediately that section 84 subsection 8 does not speak to entrenching pension rights across the board, all it does is to say that when a public servant is (retired) before his time or his ministry is being reorganised, he is entitled to his pension,” she added.

Sen. George argued that the entitlement of pensions to Mc Queen and Armstrong as ruled by the court was in relation to specific occurrences but does not apply to every public officer.

“In both the Armstrong and the Mc Queen cases, the dates which were considered in terms of the public officers’ appointment were on 17th of March 1983 and on the 1st of March 1984.

And in both of those cases, the court held that those officers were entitled to their pension benefits, notwithstanding the provisions of People’s Law number 24 of 1983.

“As we know People’s Law number 24 of 1983 was an act inter-fused (with the) Pensions Disqualification Act and what that act sought to do in sub-section 3 under the heading Pension Disqualification was to say any person who was appointed to a post in the service of the Government of Grenada on or after the appointed day shall not be entitled to any pension gratuity or other allowance under any of the scheduled enactments.

“This act has been incorporated into the existing Pensions Act and it’s important to note that on both the Armstrong and in the McQueen cases, the disqualification provision was considered but it was not struck down in its entirety so that it remains law.

“…All the courts said in both instances – in the case of Armstrong was that when it looked at section 92, she was not affected because her start date was at a time when the Pensions Act was still in force and all it said in relation to Mc Queen was that he was not affected because at the time he was entitled to rely on the provisions of section 84 sub-section 8, which is to say that because his office has been abolished, the effect of it was as if he were retired and so his pension applied and he was entitled to them.

Sen. George stressed that the issue now being fought by the public sector unions was not ever considered by the courts.

She said: “…There is no pronouncement that strikes out the disqualification provision and so my understanding of the law as it stands at the moment is that there is no right to a pension as such.

“…It is something for us to discuss at this stage, for our citizens to be aware of, for persons who are affected or who are going to be affected to be aware of and as well to consider the context in all that is coming and going to be coming in relation to pension negotiations.”

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