@Caswell

If your interpretation is correct would it not compel the NUPW and other unions representing public sector employees to act?

Caswell

You amuse me, you are an expert on everthing.
Maybe we ought to send home all of the CCJ’s Judges and replace them with you.
It is simple in litigation, you win some and you lose some. If the same Judges who you are castigating had ruled in the way you wanted, then they would have been the most competent Judges in the World.

Caswell,

As you have pointed out on a previous occasion, I speak from a position of ignorance. So could you clarify a few things? In the CCJ matter you mentioned
– wasn’t the public officer in fact paid his pension immediately on abolition of his office (and thereafter)? Did the CCJ rule against this? If no, what is the issue you are raising with the CCJ’s ruling?
– did the CCJ rule on the appropriateness or otherwise of the pension deferral in general? Was this a disputed matter in the appeal before the CCJ?
– how many courts in Barbados ruled on this matter in the same way as the CCJ? Why would you blame the CCJ and not the courts in Barbados?
– wasn’t the issue in this appeal that the public officer wanted his full pay to continue even after abolition of his office, since he argued that he was still in the public service?

Jack Spratt
As promised , I will attempt to better explain myself.
On July 22, 1975, Government passed the Pensions (Miscellaneous Provisions) Act, (PMP Act). The purpose of this piece of legislation, as explained by the Rt. Hon. Errol Barrow, is to store the pensionable service of persons who leave the Public Service to work elsewhere before they reach the retirement age for the Public Service. To achieve this goal, the PMP Act inserted the provisions in:
1. Pensions Act, Cap. 25
2. Public Employees Pensions Act, Cap. 30
3. Widows and Children Pensions Act, Cap 37
4. Teachers (Secondary Schools) Pensions Act, Cap. 56
5. Statutory Boards (Pensions) Act, Cap. 384

For the purposes of this comment, I will not reproduce the entire sections: I will merely point out the relevant parts. Since the provisions are identical in each of the various pensions acts, I will concentrate on Cap. 384.

Among other things section 10 (1) provides that pensions would be paid when a person satisfies one of the following conditions:
(i) on or after attaining the age of 60 years;
(ii) on the abolition of his office;
(iii) on the organisation of his office for any purpose
Please note that (ii) and (iii) do not speak to any particular age.

If as the CCJ is saying, the 1975 Act made the pension payable at age 60, how could you explain the 1982 amendment to section 27 which states:
27 (1) every pension granted under this Act shall be subject to the conditions that unless or until an officer attains the age of 60 years, he may, if physically fit for service under a Board, be called upon by the Board to accept an office in the service of a Board not less in value than the office which he held at the date of his retirement.
27 (2) Where pursuant to subsection (1) a pensioner is called upon to accept an office in the service of a Board of a value not less than that prescribed in subsection(1) and he declines to accept such office, the payment of his pension may be suspended by the Board acting in its discretion until he attains the age of 60 years.

If as the CCJ has ruled, the pension is only payable at age 60, how could section 27 (2) suspend the payment of the pension until the person reaches 60 if that person was not already in receipt of the payment.

Quite frankly, the CCJ got it wrong.

The judgement is here: http://www.caribbeancourtofjustice.org/judgments/CV2_2008/cv2_2008.pdf
The background to the case is interesting as it appears that the Government had been trying to remove Mr Winton from office for a while because of difficulties in the department headed by him. Government, to its credit appears to have made attempts to place him in a different position.
Paragraph 14 says “Having him continuing as Chief Electrical Officer proved unsatisfactory” so what we have here is a public sector officer who it appears cannot, or does not carry out their job satisfactorily.
The case was not about severance pay, it was about the ability of Government to abolish a public office.
Paragraphs 47 and 48 sum up the position on damages. The Court did not award damages as Mr Winton was paid a pension from the date his office was abolished in 1992 and that pension will continue until his death. In 1992 he was 37 years old so ultimately he will have been paid his pension for 23 years more than he is entitled to under the law (Paragraph 36). Even the Judge who disagreed with the majority verdict of the Court agreed that no damages should be paid.
I see no reference in the judgement to the Severance Payments Act 1971. I guess it is entirely possible that the CCJ would have taken a different view on this case, including a consideration of that Act, if the Government had not been so accommodating as to pay 23 years of pension which was not legally due.
It looks to me as though the judges did a good job of analysing the law and wending their way through what was a complicated case.
One thing, though is unclear. The case was fought on the right of Government to abolish the office of Chief Electrical Engineer.
It seems clear from the CCJ judgement that the Government was unhappy with Mr Winton’s performance. It chose to abolish his post. Why did it not remove him from office for poor performance?

Brutus
You are correct it was not an issue in either court. Nontheless, they made statements by the way without hearing arguments that have devastating consequences for the entire Public Service. The people of the Caribbean deserve much better, no wonder the other countries are skeptical about joining the CCJ.

Sorry Caswell, you are not making a convincing argument that the CCJ made an error. I think you might have to argue that the High Court of Barbados made an error.

However in light of your previous comments, what do you make of the following extract from the CCJ decision?

*****************
[26] In respect of retiring from the public service it is necessary to refer to section 13A(2) and (3) of the Pensions Act, Cap 25, which state as follows:

(2) Subject to subsections (3) and (6), no pension, gratuity or other allowance under this Act shall be granted to an officer except on his retirement from the public service in one of the following cases:

(a) …;
(b) …;
(c) on the abolition of his office;
…

(3) Subject to subsection (5) a pension, gratuity or other allowance under this Act may be granted to an officer who retires before attaining the age of 60 years but payment shall be suspended until

(a) he has attained the age of 60 years or sooner dies; or
(b) he satisfies the Governor-General that he is incapacitated and his condition is likely to be permanent.

Caswell, that a subsection was, as you put it, “wrongly” inserted in an Act is not a legal argument at all but only a hope on your part. The words of the subsection seem quite clear to me; what argument is there for a contrary interpretation? The intention of Parliament as gleaned from the speech of one Parliamentarian in Hansard, no matter who he may be, cannot outrank the plain words of the section.

@Caswell

I agree with Jack Sprat point. Any how it is no use co
ntinue the debate on this matter, the CCJ has ruled and that decesion must be accpted, unless the court can or is asked to revist it. Can that happen.

@poop at sea

why do you attack Caswelll so viciously? You seem to have a personal problem with him?

somewhere in the back of my mind, i believe you have a point but i thnk you confused the issue in you opening arguments by referring to the severance payments act and mr barrows reasoning et al. so, even thoug i hold the same view as you, i agree with brutus that your case is not well put but for once kind of muddled.i wanted to join the argument on your side and was about to do the appropriate research but cannot findmy copy of the CCJ’S decision re- winton campbell.however, i would put my two cents worth subject to correction. my understanding in reading the decision is that it runs counter to the pension laws of barbados which allpowed mr campbell to obtain his pension before 60 because his post was abolished and he was not offered a post of same or better value. on the other hand, what the CCJ’S decision didin its ruling against mr campbell was to reverse the obligations of the pensions act of barbados to public officers whose posts were abolished without placement in posts of same value but allowed mr campbel to continue to benefit from the provision of obtaining his pension before 60 because he was already receiving it.; and correct me if i am wrong caswell but that is my understanding in a nutshell from a layman’s layman’s perspective..

Balance
I referred to the Severance Payments Act only to point out that public officers were excluded from receiving benefits under that act because they had better provisions under the various pensions acts in the event of redundancy/abolition of office.

I referred to Mr. Barrow’s speech in the House of Assembly to show that the legislation that the Court of Appeal and the CCJ misinterpreted had nothing to do with abolition of post. That legislation was only meant to store pensions for people who left the service early, that is before retirement date, and went on to work elsewhere.
Please bear with me a little longer and you will see my point. According to the Court of Appeal and the CCJ, Act No. 1975 – 31 provided that the payment of the pensions would be deferred until the person reaches 60 or sooner dies. If that interpretation is correct, why would Parliament pass Act No. 1982 – 45 to say that if you are in receipt of a pension and you were not yet 60 years of age, you could be called out to work and if you refuse the pension would be suspended until you reach 60 years. Those two provisions do not make sense and cannot both exist at the same time. Since the 1982 act is the latter it should stand.

Even if I am wrong, my contention is that the courts should not have spoken to the issue without hearing arguments on something that is so important. As a result of this interpretation public servants who are severed have no claim for severance payments, also they are not entitled to receive unemployment benefits from the National Insurance Office. All that the Government would be required to pay immediately to the severed employee is the last month’s pay and any accumulated vacation pay.

Imagine being severed at age 35 and having to wait 25 years for your severance payment. That is now the law according to the CCJ. Worse yet the severance payment would be calculated on the salary that you were receiving 25 years earlier.
Balance, that is also my layman’s perspective, and I hope that I have made myself a little clearer for you.

I remember when the Government of Barbados went to Parliament to change the law to get rid of Winton Campbell.

He became a legend, …. the only man the Government had to go to Parliament for …. and change the law to get rid of.

I remember hearing he was a stickler for the codes and if as a contractor you could not convince him logically a particular solution met those codes as laid down in the IEE Regulations (as required by the law at that time) … your job failed until you could demonstrate it met the codes, regardless of who you were!!

That meant your project could not be connected to the BL&P.

That meant delay in delivery to your client.

As a contractor you looked bad.

I did not get the impression he was very popular with the big contractors, …… a very articulate guy, …. knew the codes he was responsible for enforcing, ….. very difficult to defeat in debate.

Only a brave person would take him on in technical matters relating to the codes.

I don’t know much about his day to day management of the department for which he was responsible.

Maybe he was at fault here.

Balance
Because of my past association with party politics, everything I write is attacked by nincompoops, like CCC, because they think that I have some political axe to grind. That said, I must tell you that NUPW is aware of the situation: I can’t speak to what BWU knows, but they should. The problem is simply that the unions, for the most part are wrapped up in politics and have lost sight of their role in representing the workers.

The unions will not speak to the mess that the court ruling has caused on public servants because the government is exploiting the situation for political gain. They have already used the ruling to rid themselves of thirteen workers at the Urban Development Commission, and are now wreaking havoc on the workers who are employed by the departments that now fall under the Financial Services Commission.
The unions are afraid that they will lose their perks from the Government if they are critical of Government in the interest of the workers that they represent. Some politicians see everybody that criticises them as enemies to be stamped out going as far as destroying organizations where they work. Look at what is happening at the Family Planning Association: George Griffith is a well known supporter of the BLP, and Government has been systematically removing funding from that body just to take out George, but you are not hearing that because everyone is afraid of politicians with actual power.
As far as I know, no union in this country has called upon the Government to go to Parliament and reverse the effects of this ruling. The only other way to change the abhorrent situation would be to take the matter to the High Court, lose there; then appeal to the Court of Appeal, lose there; ant then appeal to the CCJ in the hope that they would reverse themselves. However they are not likely to do such a thing because the situation was brought to their attention by someone who never set foot in a law school, well at least not during class.

How is it that a Civil Servant (born the same year as me) can go home at 37 (after putting in maybe 20 years in the work force) and collect a pension until aged 77,87, 97, 107, 117? 127?

And poor non civil servant foreign exchange earning me can’t collect a cent of pension until I am 67 and have put 49 years of sweat and tax money into the system.

Somebody please explain this to me in real simple language that I can understand.

Caswell

The case was never about severance and I did not want the court consider any such thing. However, you are quite correct that the issue of severance was not the substantive matter before them, but neither was the issue of receiving pension at 60 years when the post is abolished. It was not argued before them. They were not called upon to pronounce on the matter, but they did so without the benefit of any legal argument. They just delved into an area where they had limited knowledge and wreaked havoc in the lives of all public workers even if the have not yet realised it.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Is this pronouncement on pension in the absence of legal arguments an Orbiter Dictum?

http://en.wikipedia.org/wiki/Obiter_dictum

I

Courts make mistakes.

Judges are only human.

The question is how to rectify them to prevent irreparable harm being done!!

How would it look now for the CCJ to apologise for an error in judgment and the Government of Barbados has relied on the error?

I am no lawyer either but I wonder how courts deal with evidence which arises to prove a person jailed for life is actually no murderer at all.

I know from TV that they admit their error and apologise.

However, is the pardoned person compensated for losing perhaps decades of his life?

Guess that is criminal law vs civil law.

….. but, courts do make mistakes … and admit them.

John
I agree with you that judges make mistakes, as all of us do at times. My major problem is that the Government would seek to exploit the mistake for cheap partisan politics. They used the mistakes to dismiss workers, who were accused of BLP affiliation workers from the UDC. When they discovered that the workers were not now entitled to compensation upon dismissal because of redundancy, a caring Government would have moved to rectify the problem, not abuse workers as a result of it.

Personally, I was prepared to give my support to the present administration, not because they are doing an excellent job, but because the alternative, in the for of a government lead by either Mottley or Arthur would give me stomach problems. Now , I am forced to reconsider that support because I cannot support politicians who would treat people in this manner. They ought to be ashamed.

Quoting Caswell Franklyn “Just imagine if this ruling were in place when Campbell was made redundant in 1992, and he was not re-employed in the Service, he would have to wait, for what would be in effect his severance pay, until 2015 to receive any money. Does that sound fair to you?”

No. Pay the man his severance and unemployment right away.

But if a well educated man, is severed, fired, made redundant, post is abolished whatever at age 37 it is his RESPONSIBILITY to look for other work fast, fast.

I am one of those people who feel that paying a 37 year old a pension until such time as the government finds him a commensurate job is a disincentive to him using his initiative to find other work, in or out of the public service, or in or out of Barbados.

But that said I’d like to see the law restructured so that civil servants are on a level playing field; so that civil servants make contributions to and receive unemployment insurance and severance payment like anybody else.

And yes I’d like to see some of the job security removed from civil servants.

If a civil servant is lousy at his job, creates havoc in her office, arrives late and leave early, doesn’t show up on Mondays because of being stale drunk, takes too frequent sick leave even though he or she doesn’t have any chronic illness or any illness at all; takes 3 hours lunches to put out pubic fires up where she does live, the government should be permitted to fire, indeed should be encouraged to fire.

Caswell said “Public officers who are appointed to their posts are appointed until they resign, retire at 60, or die, whichever comes first”.

Now that is an absolutely amazing practice and perhaps this is why the matter is so important to Caswell! Government should be able to fire any public officer, but I am tending to agree with Random Thoughts that the public officers should therefore be part of the unemployment and severance schemes.

Maybe Caswell can present the other side of the argument.

Brutus
You are correct. The matter of the pension was not raised at appeal simply because it was not a ground on which the court was asked to rule, yet they decided and created havoc in the process.

There is some misunderstanding about public officers and their security of tenure. Public officers can be dismissed for misconduct: the problem comes when those alleging misconduct are unable to prove their case. For example, in order to dismiss a person for being habitually late, you must produce a register to show he was late. The absence of a register is not the fault of the accused: rather it is fault of the Head of department who is required by law to maintain a register. Below is a list if some of the offences that can result in dismissal:
2. In this Code,

“misconduct of a serious nature” means conduct that warrants the dismissal of the offending person and, in addition to the misconduct specified in paragraph 27 (b)(i)of the Code of Conduct and Ethics, includes the following:

(a) absence from duty without leave or approval;

(b) conviction of a criminal offence punishable by a term of imprisonment;

(c) failure to report or disclose any information that ought reasonably to be reported or disclosed where the consequence of that failure amounts to a grave injustice;

(d) unauthorised disclosure of information pertaining to the Government;

(e) insubordination;

(f) habitual intoxication or possession, use or distribution of illegal drugs while on duty;

(g) reporting for duty or performing duties while under the influence of alcohol or illegal drugs;

(h) failure to observe any laws, orders, rules or regulations governing the Public Service;

(i) falsification of accounts or records, either manual or electronic;

(j) wilful mutilation, alteration or destruction of property including official documents or records, either manual or electronic;

(k) the threatening of a fellow officer or any person or threatening the destruction of any property while on duty;

(l) the causing of grievous bodily harm;

(m) the unauthorised possession of a firearm or other device that can be considered an offensive weapon;

(n) acceptance of bribes or other inducements;

(o) misappropriation of public funds;

(p) major loss of or damage to property of the employer;

(q) failure to perform the duties assigned to the office;

(r) negligence in the performance of duty;

(s) failure to maintain official records where the consequence amounts to a grave injustice;
(t) misconduct involving 3 of more of the matters listed herein as matters of misconduct of a minor nature in paragraphs (a) to (h) within a period of 2 years;
In addition to the above a public officer can be dismissed for deceiving or knowingly deceiving misleading MInisters, Parliament, Permanent Secretaries or the public.
The rules only have to be enforced

this ruling has really dealt a grave disserviceto those public officers whose posts were abolished and had certain pension rights under the pension laws of barbados.the question is how can those rights be restored in keeping with our more humane pension laws. by the way, do you not realise that by injecting severance into the argument led to some misunderstanding of the issue. also, am i to understand that a B.L.P without mr arthur or miss mottley would attract your support once more?

But Caswell are appointed public servants ever fired?

If so how many each year? Or what % in any year or in the past 10%

In other words is being fired something that public servants have to worry about

I was always under the impression that public servants were made of asbestos, that is fire proof.