The Caribbean Court of Justice (CCJ) was established mainly to replace the British Privy Council as the final court of appeal for Caricom member states. Originally, only two member states, Barbados and Guyana, signed on to the appellate jurisdiction of the CCJ. Belize followed recently. Since the court was established to service 14 member states and now only services three, it would appear that the CCJ is under worked.
One would have thought that since the court is not over burdened, it would be able to take time and deliver well researched and well reasoned decisions. Unfortunately for Barbadian public officers and persons employed at statutory boards, whose employees are pensionable under the Statutory Boards Pensions Act, that was not the case. On April 3, 2009, in the case between Winton Campbell and the Attorney General, the CCJ delivered a judgement that would deny public officers any benefits if their jobs were abolished, that is if they were severed, until they reach 60 years of age or sooner die.
Public workers who lose their jobs, through no fault of their own, are not entitled to receive severance payments or unemployment benefits. According to the CCJ, they would only be entitled to their last month’s pay and pay for any accumulated vacation immediately, and they would have to reach 60 years of age in order to get anything that is due to them.
They arrived at this conclusion as a result of a gross misinterpretation of law and a misunderstanding of the intent of Parliament. When Government passed the Severance Payments Act in 1971, they specifically excluded public employees because they were already entitled to compensation, in the form of an interim pension which would be paid immediately on abolition of office. This pension would be paid until such time as Government provided suitable alternate employment for the affected officer. If the officer refused the job that was offered the law provides that the payments would cease until the person reached 60 years of age.
The court’s confusion came because of a misunderstanding of a piece of legislation that was passed in the House of Assembly on July 22, 1975. Back then the Rt. Hon. Errol Barrow went to Parliament to correct a serious deficiency in the pensions’ legislation. As the law stood then, a person who resigned from the public service before pension age would not be entitled to receive a pension no matter how long that person had been employed. Early retirement age was 50 years. At this point, in order to understand Parliament’s intent it would be useful to quote the Rt. Hon. Errol Barrow, as reported in Hansard:
“In order to get a pension you should have done under the old legislation 10 years’ service. That means you can join the Service at the age of 40 and retire at 50 and get a pension. If you join the Service at the age of 18 and go on until you are 49, you would have done 31 years’ service and under the existing legislation you would not be entitled to a pension because you had not attained the age. This is one of the anomalies which I have drawn to the attention of this Chamber on previous occasions, but it is our policy and I have expressed here before that there should be a lot more flexibility in entry and exit into and of the Barbados Government Service.”
He went on to say:
“The main purpose of the amendments would be to make it possible for a person who is a professional or any other officer to come into the Service, do a certain amount of time and go out and get experience in the private sector, and it will also be possible for the Government to recruit people directly from the private sector who will come into the service and work for a number of years, and they do not have to wait until they are 50 years of age before they retire, but if they retire before the age of 50 and go to work in the private sector they will wait until the age of 55 for a pension.”
The learned judges of the CCJ misunderstood Mr. Barrow’s noble intentions: he never intended to deprive public officers of what would amount to severance payment. The 1975 amendments only intended to store pensions of persons who resigned from the service before they reached retirement age and went on to work elsewhere. By now, the judges should realise that they committed a grave error, and move to reverse the harm that their decision has caused.
The first officers to suffer, as a result of this miscarriage of justice, were the workers who were terminated by the Rural Development Commission: it is now the turn of the officers who will be displaced by the formation of the Financial Services Commission.