Judgement in three teachers case
The nation should pause for a minute to consider the judgement handed down by the Court of Appeal in what is now commonly referred to as the “3 Teachers Case.” The judgment is poorly reasoned to the point where it looks as if the Court simply wanted to arrive at an outcome favourable to the teachers, for whatever reason, and in pursuit of that goal abandoned reason and logic and showed little regard for the actual state of the law. I am not at this moment speaking to the question of whether or not the government should make some compassionate, conciliatory or discretionary gesture towards the teachers. I am simply looking at the issue from a legal standpoint, which ought to be the principal concern of the Courts.
Article 16 of Collective Agreement – Constitutional But Irrelevant
The Court of Appeal dealt with Article 16 of the Collective Agreement in a curious way. This article is about the grant of leave of absence to teachers and reinstatement with all benefits intact if their electoral bid is unsuccessful. The Court said that the article is constitutional, but that was not the end of the story. The reasoning was that the grant of leave of absence by itself did not qualify a teacher to contest elections. The teacher must take the additional step of resignation as required by Section 26(1)(d) of the Constitution which prohibits a public officer from being elected to Parliament.
What was not said was that if the person is required to resign, then the leave of absence makes no sense at all and is absolutely irrelevant. A person who has resigned cannot be granted a leave of absence (because they are out of the service), and it is clear that a person cannot contest general elections on the basis of a leave of absence alone. So what exactly is the point of article 16? In reality, article 16 could only be of any use if a teacher was permitted under law to contest elections in the first place. There is no such law. If there were such a law, then the teacher would be qualified to contest the elections and can then apply for a leave of absence. In this scenario, there is no need for the collective agreement to address the matter of teacher re-instatement if unsuccessful at the polls because the situation does not arise. If a teacher has been granted a leave of absence, he/she essentially still occupies the post during the period of the leave of absence and therefore has no reason to be re-appointed. There are aspects of the collective agreement that would be superfluous if teachers were actually permitted as a matter of law to contest elections.
Protection of Property and Pension Benefits
Clearly, the teachers could have been under no illusion (or legitimate expectation) that Article 16 of the Collective Agreement guaranteed their re-employment with benefits in tact. The learned judge of the High Court (whose decision the Court of Appeal overturned) made the telling point that legitimate expectations must be legitimate. In the first place, the teachers were not even granted the leave of absence, but were instead pointed to the Constitution which showed the resignation requirement. They resigned. A resignation amounts to a forfeiture of employment rights and benefits. However, the Court of Appeal declared that the teachers were entitled to pensions on the grounds of protection of property, and not for any reason connected to the collective agreement.
This raises several questions. What about teachers who resigned their position to contest elections as ULP candidates? The names of Deborah Charles and Elvis Charles are examples of recent vintage.
They resigned and in doing so accepted that they had forfeited the right to ongoing work in the public service and pensions. This was done in the post collective agreement period. The logic of the judgment says that Elvis Charles and Deborah Charles should also get pensions.
What about public servants who were not teachers who resigned to contest elections? I believe that Frederick Stephenson is a case in point. If the right to a pension is grounded in arguments concerning the protection of property (which I repeat has nothing to do with the collective agreement and which cannot be said to be restricted to the teaching profession), then all public servants who resign for electoral purposes should retain the right to pensions.
There’s more. What about persons who resign from the public service for any reason at all? perhaps for migration? I’m thinking about Ceceal Michael-Samuel as an example. How do they stand? Again, the logic of the decision suggests that they should also get pensions. It still does not end there. What about the persons who were fired from their jobs in the public service (with or without cause)? Should their pension benefits also remain intact as suggested by the judgement? The Court of Appeal may have opened a can of worms or Pandora box. How would it put the genie back in the bottle? The question at the heart of the matter is this: when does someone become qualified or entitled to a pension? When is a pension earned? When does it become a part of your property to be protected? Isn’t a pension forfeited by resignation? Since the protection of private property is not grounded in the collective agreement, could we take the argument to as far back as the days of Girlyn Miguel? It would be interesting to hear the Court’s answers to these questions.
I am confident that the decision of the Court of Appeal will be overturned by the Privy Council if contested. I should say though that I have some sensitivity for the plight of the teachers, but I also believe that they understood the implications of their decision to resign and contest the elections. They did not enter the fray blindfolded. I confess that I have least sympathy for Mr. Kenroy Johnson. The decision he made to get involved in politics is considered by many persons to reflect the height of stupidity and vanity. He was a mere few months away from retirement and all its benefits, including the unfettered freedom of political participation, and yet he decided to jump the gun to run against the Prime Minister in a seat that was impossible for Mr. Johnson to win. What folly! He was obviously banking on an NDP victory which never materialised. Actually, he may have been paid by the NDP to become a candidate and there could have been other inducements. When a man makes this kind of gamble, he must realise that he could either win, or lose. He should also be prepared to live with the consequences. Something can be worked out for the teachers as a matter of compassion or grace, but not as an entitlement.