High Court judge Fidela Corbin-Lincoln is expected to be given a report tomorrow on the timeline by which government is likely to make payouts of outstanding severance to the more than four thousand former GuySuCo workers who were made redundant a year ago.
When the matter came up for hearing yesterday morning, Nikhil Ramkarran, counsel for the Guyana Sugar Corporation (GuySuCo) against which the action was brought, indicated that the government intends to honour its obligations to the ex-sugar workers but could not say when payments would be made.
He said it is public knowledge through press reports that plans are being made by the state to ensure the payments and against this background has given an undertaking to ascertain from the sugar corporation when the monies would be paid.
He is to give the court an update when the matter is called again at 3 tomorrow afternoon.
The Guyana Agricultural and General Workers Union (GAWU) which represents the workers and by which the action was also filed, is seeking a declaration that the 4,283 affected workers who together came from the Skeldon, Rose Hall and East Demerara Sugar Estates are entitled to their severance or redundancy allowances.
An estimated quantum was not stated in the application.
Though Ramkarran has argued that the GAWU has no standing in the matter, he said that GuySuCo acknowledges the remaining severance to be paid and intends to make the payments.
Counsel is, however, contending that the challenge before the court ought not to have been brought by the union since the agreement under which it functions does not cater for the representation of former employees, while adding that it makes no provision for litigation before the courts.
He argued that while the agreement does provide for dispute resolution—in the form of arbitration and the like, it does not extend to the filing of court actions by the union.
Ramkarran is of the view that retrenched workers would instead have to bring the action on their own.
For his part, however, attorney Anil Nandlall who is representing the union refuted Ramkarran’s arguments stating that the agreement has no applicability in the challenge before the court.
He said that not only are the retrenched workers members of the union, but referencing case law, stated that the courts in a previous similar matter had ruled that the union does have standing in such disputes.
He said that the agreement itself contemplates the union and its members as being in an existing relationship.
Apart from saying that the union could not bring the action, Ramkarran then questioned its capacity and as representing whom.
It was at this point that Justice Corbin-Lincoln sought to ascertain from counsel whether the action could be regarded as properly brought if the retrenched workers say that they are members of the union as Nandlall is contending.
“They would have to go further than that,” Ramkarran then said, adding, “They would have to establish that they are entitled to bring an action.”
The judge said that that would be a finding for the court.
On the instruction of the judge, however, Nandlall said that he will be filing a supplementary affidavit to include a few additional lines to say that the retrenched workers are members of the union.
Both he and the judge said that this amounted to a wastage of time since the union is not disputing that the workers at the centre of the dispute are its members.
But since Ramkarran said that this was not actually stated in the application, the court ordered Nandlall to make the inclusion by way of a supplementary affidavit.
Justice Corbin-Lincoln said she will be expecting the report from Ramkarran on when payments are likely going to be made by the sugar corporation as it is that issue which is the crux of the challenge before her.
The judge said she would not allow precious judicial time to be wasted when the main issue is not being disputed. “Why are we even here?” the judge asked.
In its application, GAWU is arguing that since its workers were rendered redundant in accordance with the provisions of the Termination of Employment and Severance Pay Act they are entitled to severance or redundancy allowances thereunder.
Against this backdrop, the union is hoping for the court to make an order directing the respondents, their officers, servants and agents to make the payments forthwith.
The applicant is also seeking court costs and any further relief which the court may deem just to grant.
In an affidavit supporting GAWU’s application, its General Secretary, Seepaul Narine said that the redundant workers were to receive their redundancy allowance/severance payments no later than 29th December, 2017, in accordance with their termination letters and in the spirit of Section 21 of the Termination of Employment and Severance Pay Act.
He, however, noted that at the filing of the court action in July of this year, the workers were paid only a portion of the amount and despite their and the union’s repeated demands for full payment of the balance, GuySuCo has failed and/or refused to do so.
In July of this year, Minister of State Joseph Harmon had said that in keeping with the government’s commitment to complete severance payments to all retrenched sugar workers, the final amounts would have been paid off in the second half of the year.
“Cabinet discussed payment of the second tranche of severance to the sugar workers and iterated its commitment to honouring the agreement to make the remaining severance payment within the time it promised,” he had said.
By law, the severance payment ought to have been made at the time of termination of employment and the failure of GuySuCo and the government to comply with this provision drew criticism.
Harmon had explained that while GuySuCo is responsible for paying the retrenched workers, government as the major stakeholder in the company had stepped forward since the money needed was not available.
“The major shareholder in GuySuCo is government, so whether it is GuySuCo owe them and GuySuCo doesn’t have the funds to pay, government will have to step in and that is what is taking place,” he had said.
By its own admission, the government was aware that the workers would be let go of and having presented the 2018 budget on November 27th, 2017, it still did not make provisions for the estimated $5 billion in severance payments.
