A case dating back to the late 1990’s could play a significant part in determining whether Prime Minister Dr. Keith Mitchell and his ruling New National Party (NNP) government broke the law when they docked the salaries of striking teachers and public officers in November 2018.
The case which originated in the COMMONWEALTH OF DOMINICA was filed by a civil servant name Rosemond John, a teacher by profession, against the Permanent Secretary in the Ministry of Education.
A high court judge had ruled in favour of the PS Education in 1997 to make deductions from her salary following strike action.
However, the Court of Appeal ruled one year later in favour of John in a landmark decision that has implications for all member countries of the Organisation of Eastern Caribbean States (OECS) with similar constitutions like that of Dominica.
The Court of Appeal judge who delivered the ruling on behalf of the other members of the 3-man panel was Grenadian Albert Redhead who has since retired from the bench.
Former Attorney-General, Cajeton Hood who is representing an affected secondary school teacher from St. Joseph’s Convent – St. George’s whose salary was docked in the recent strike action is expected to rely heavily on the Albert Redhead ruling.
But legal sources have quickly pointed THE NEW TODAY to a follow-up ruling by the London-based Privy Council in a case from Jamaica known as Sykes vs Ministry of National Security which gives a different interpretation to the Redhead decision.
The Privy Council described the Jamaica situation as rather “a contractual” engagement of service and not “a constitutional issue”.
However, a well-respected local attorney who once served government indicated that if the State is planning to use the Sykes case it can end up in a legal quagmire as the context for the Privy Council ruling is vastly different without giving specific details.
THE NEW TODAY has decided that in the public interest to reproduce an edited version of the Albert Redhead ruling in which the two other presiding Justices of Appeal were the late Satrohan Singh and Albert Matthew.
Mr. A. Sheppard, Mr. A. Lawrence and Miss E. Darwton for the Appellant
The Honourable Attorney-General, Mr. A. LaRonde for the Respondent,
Mrs. H. Felix-Evans with him
ALBERT REDHEAD J.A.
During his argument learned Counsel for the appellant referred to this case as “a test case”.I would say that whatever decision this court arrives at, would have important implications throughout the Eastern Caribbean States with a Constitution and General Orders similar to that of Dominica.
The simple issue, if I may encapsulate it, is that if a Civil Servant goes on strike and his pay is deducted for the days in which he is on strike whether this is a disciplinary matter. If indeed, it is a disciplinary matter then it is a matter, for the Public Service Commission which is the sole body that is responsible for discipline of Civil Servants. On the other hand, if, as the respondent maintains, it is a matter purely of a contractual nature and not one of discipline, that is to say, that if the Civil Servant works only then he earns his contracted salary, then it is not a matter for the Public Service Commission. To emphasize this point the respondent claims that when the appellant was employed she was given a letter, which said that her employment was subjected to General Orders.
General Order 3.27 states as follows:
“Salaries and wages of Officers who go on strike will not be paid for any day or portion of a day during which they are on strike. Thus if an officer or employee merely reports for work on any day of a strike but does not work for the day, he will receive pay in respect of that day; if he works only for a part of any day of a strike he will not be paid for that period of the day during which his services were withheld”.
This General Order was incorporated in her letter of appointment. The respondent alleges that as a result this forms part of her contract.
The argument of the appellant is that she has a legitimate right to her salary, as her salary “is a reward for the tenure of her office and not for carrying out the functions of that office”.
The appellant brought an originating Summons before the High Court seeking the following declarations:
(1). that the decision of the Permanent Secretary, Ministry of Education contained in a letter dated 30th October, l996 that deductions would be made from the plaintiff’s salary is unlawful, unconstitutional, null and void;
(2). that any deduction made from the plaintiff’s salary consequent upon the letter of 30th October, l996 is unconstitutional, unlawful, null and void and that the said amount be refunded to the plaintiff;
(3). damages, including exemplary damages;
(4). such consequential and other relief as the court deems fit;
The matter came before Cenac J on 20th March, l997 and he agreed with the respondent’s contention that:-
*The deduction from or non-payment of salary during the period that Rosemond John was on strike is truly supported by General Order 3.27 of the Public Service. The non- payment of salary or wages during the strike does not amount to deprivation of property as no property was earned or acquired during that period and as such the provisions of the Constitution were not contravened.
The learned judge also agreed that salaries and wages of officers and employees who go on strike should not be paid for any day or portion of a day that the officer is on strike.
The appellant appeals to this court against the judge’s decision.
Four (4( grounds of appeal were filed on behalf of the appellant:
a). The court erred in finding that General Orders were and formed part of the Appellant’s appointment.
(b). The court erred in not finding that the Permanent Secretary in deducting pay was exercising a disciplinary power.
(c). The Court further erred in not finding that the deduction of pay was a deprivation of property in breach of the provision of the Constitution of the Commonwealth of Dominica.
(d). The court further erred in not finding that as the deduction of pay was in respect of a period during which the appellant performed her office the deduction was illegal, null and void.
Mr. Sheppard, Learned Counsel, for the Appellant in his skeleton argument drew attention to the fact that the respondent’s contention before the learned trial judge, that is to say, that the General Orders,
being administrative orders and instructions in use and in force prior to the commencement of the Civil Service Act 1991 are deemed to have been prescribed under Section 39[a] of the Public Service Act.
Mr. Lawrence argued that in so doing the learned trial judge was praying in aid Sections 39 and 42 of the Public Service Act l991.
Section 39[a] of the Public Service Act reads as follows:-
“Subject to subsection , the Minister may after consultation with the Chief Personnel Officer and the Representative Body, make regulations prescribing all matters that this Act are required or permitted to be prescribed or that he considers necessary or convenient for giving effect to this Act and, in particular [c] for regulating the duties and conduct of Public Officers”.
Section 42 provides:
“The Civil Service Act 1973 is hereby repealed save that [a] all Orders, Rules and Regulations that continued in force under it in so far as they are not inconsistent with this Act, shall continue in force until revoked by Regulations under this Act; and [b] any administrative orders and instructions in use and which were in force immediately prior to the commencement of this Act shall be deemed to have been prescribed under Section 39[a] of this Act”.
Mr. Sheppard also referred to Section 30 of the Civil Service Act 1973 which provides:
“ The Governor may make Regulations and issue administrative orders and instructions for the Civil Service prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out, or giving effect to this Act and in particular for the following, namely”
There under are listed ten matters. I shall only refer to those which I think bear more relevance to the issues under consideration:-
(a). for prescribing the terms of and conditions of employment in the Civil Service;
(b). for prescribing the procedures for the recovery of any penalties from a Civil Servant;
(c) for regulating the hours of attendance of Civil Servants and the keeping and signing of records of attendance or for prescribing other method of recording attendance;
(d). for regulating the duties of Civil Servants
In my opinion (d) above is the one which bears more relevance to this subject under discussion. However, it is quite conceivable that a matter of discipline can arise from the other matters mentioned:-
 unless otherwise in any enactment provided; the General orders of the Windward Islands, the Colonial Regulations and the Financial and Store Rules shall remain applicable to all Civil Servants in Dominica in respect of matters of conduct, procedures and discipline.
Mr. Sheppard then submitted that for the General Orders to have effect they must have been saved by Section 42 of the Public Service Act 1991. There must either have been an order that continued in force under the provisions of the Civil Service Act 1973 or orders which were in use and in force prior to the commencement of the Public Service Act 1991.
Learned Counsel, Mr. Sheppard, argued that prior to the Public Service Act l991, Administrative Orders could have obtained legal authority in two ways:-
[i] by virtue of Section 30 of the Civil Service Act 1973 which gave the Governor General power to issue such orders [and instructions] or;
[ii] by virtue of Section 30 of the Civil Service Act which saved Colonial Regulations of the Windward Islands.
Mr. Sheppard submitted that General Orders on its face indicate that it was not made by the Governor. Hence it could not have been in force pursuant to S.30 of the Civil Service Act 1973.
He then contended that there is no proof that the General Orders presented are that of the Windward Islands, and that a perusal of the text shows clearly that they are not; it is a document specific to Dominica.
Mr. Sheppard then submitted on behalf of the appellant that even if General Orders may have been in use they were not in force in that they did not have the force having originated from a legal source.
Learned Counsel further submitted that even if General Orders applied by virtue of S.30 of the Civil Service Act 1973 they do so only in matters of conduct, procedures and discipline. This takes the matters to which they refer back to the realm of the Public Service Commission’s jurisdiction.
From the foregoing it seems to me that there is no proof that the Governor exercised his power given him under S.30 of the Civil Service Act 1973. The powers given under that Section are in my view much wider than those contained in Section 30 which is only in respect of matters of conduct, procedure and discipline. It seems therefore that under Section 30, the General Orders of the Windward Islands, the Colonial Regulations and the Financial and Store Rules were of limited applicability to Civil Servants in Dominica that is to say, in respect of matters of conduct, procedure and discipline only.
In my view, therefore, if anything was saved by S.42 of the Public Service Act 1991, the General Orders of the Windward Islands etc. which had limited applicability i.e to do with matters of conduct procedures and discipline.
I therefore agree with Mr. Sheppard that these General Orders do govern the conduct and discipline of Civil Servants which are matters for the Public Service Commission.
I turn now to examine the question of whether deducting the Appellant’s pay in the circumstances of this case was a disciplinary matter.
S.85 of the Constitution of the Commonwealth of Dominica reads:-
“The power to appoint persons to hold or act in offices in the Public Service [including the power to confirm appointments] and, subject to the provisions of Section 93 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Service Commission”.
Mr. Sheppard submittted that the wording of S.85 clearly supports the view that if deducting the salary of teachers involved in a strike is a disciplinary matter then only the Public Service Commission has the authority under that Section of the Constitution to make the deductions. The Permanent Secretary would have acted ultra vires unless he lawfully carried out a function lawfully delegated to him by the Commission.
General Order 3.27
Salaries and wages of officers and employees who go on strike will not be paid for any day or portion of a day during which they are on strike. Thus if an officer or employee merely reports for work on any day of a strike but does not work for the day, he will not receive pay in respect of that day; if he works only for a part of any day of a strike he will not be paid for that period of the day during which his services were withheld”.
General Order 3.4
“An officer who absents himself from duty without permission, except in the case of illness or other unavoidable circumstances, shall render himself liable to disciplinary action”.
Section 11 of the Public
Service Act l991 reads:
A public officer who without reasonable excuse, does an act which:
(a). amounts to failure to perform in a proper manner any duty imposed upon him;
(b).contravenes any of the provisions of this Act or any Regulations made thereunder;
(c). is prejudicial to the efficient conduct of the Public Service or tend to bring the Public Service into disrepute;
(d). is liable to disciplinary proceedings for misconduct in accordance with the provisions of the Public Service Commission regulations in respect of misconduct”.
Mr. Sheppard argued that the appellant’s case fell within 11[a] or 11[b] above. He contended that absence from one’s duties without reasonable excuse would be a failure to perform a duty imposed upon an officer.
So too, argued Mr. Sheppard, assuming that the appellant’s submission that the General Orders are of no legal effect fails, then the General Orders are deemed to be regulations made under the Act by virtue of Section 42. Therefore anything done in contravention of General Orders is a disciplinary matter.
I take the view that everything depends upon whether the officer is acting without reasonable excuse. If the officer goes on strike for instance, can it be said in the context of S.11 that he is doing something with reasonable excuse? I think not.
If for instance, the Hon. Attorney-General’s contention that S.11 of the Dominica Constitution gives one the right to strike were correct, that would certainly put the matter beyond contention, but I do not accept that is the case.
S.11 of the Constitution merely gives the citizen, among other things, the right to form or belong to trade unions or other association for the protection of his interest.
In my view S.11 [c] of the Public Service Act bears greater relevance on this matter. As when the officer goes on strike, it is inevitable that his action along with his colleagues will disrupt the efficient conduct of the Public Service and therefore prejudicial to its efficiency. This would, in my view render the officer liable to proceedings for misconduct unless, of course it would be regarded as reasonable excuse.
There cannot, in my view, be any linguistic difference or differences in reasoning between General Orders 3.27 and 3.4. The former mandates that officers and employers who go on strike will not be paid. Whereas the latter states that an officer who absents himself from duty without permission is liable to disciplinary action.
When one goes on strike it goes without saying that one absents himself from work. Unless the view is that when one goes on strike one absents himself from work but with permission, that would indeed be an absurd view to hold.
In my view the effect of General Orders 3.27 and 3.4 is to provide a vehicle for discrimination among members of the Public Service, in that the Permanent Secretary could arbitarily choose one order, as opposed to depending on the political complexion of the “Offender – or any other extraneous reason.
In Thomas v Attorney-General of Trinidad and Tobago Ac.113 at page 124 Lord Diplock said:
“The whole purpose of Chapter viii of the Constitution which bears the rubric “The Public Service” is to insulate members of the Civil Service, the Teaching Service and the Police Service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day. The means adopted for doing this was to vest in autonomous Commissions, to the exclusion of any person or authority, power to make appointments to the relevant Service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service”.
If I am correct that there is nothing in the language of both orders nor in reason to distinguish one from the other, then in my view Order 3.27 must be regarded as a matter of discipline. Once so regarded, then under the Constitution of Dominica the only authority vested with power to exercise disciplinary control is the Public Service Commission.
In fact I go so far as to say that when the Permanent Secretary deducted the Appellant’s pay for the days she was on strike, notwithstanding that he was purportedly acting under and by virtue of General Order 3.27, he was in fact exercising a disciplinary financial sanction which in my view the Permanent Secretary had no authority to exercise.
Having regard to the view which I have taken concerning the relationship between General Orders 3.27 and 3.4, I yield to the submission of learned Counsel, Mr. Sheppard that General Order is inconsistent with the Constitution because it deals with similar situations in General Order 3.4 and the former predetermines the penalties available for misconduct. Therefore General Order 3.27 should be modified from the date the 1978 Constitution comes into force. It should be read with modification to bring it in conformity with the Constitution.
(To be continued next week)