Justice Sandil Kissoon yesterday ruled that the Government is barred from deducting monies from striking teachers’ salaries until the Guyana Teachers’ Union (GTU)’s legal challenge against this move is determined.
On Tuesday, through a court filing, the government had asked for 14 days to respond to the union.
When the matter was called, Attorney General (AG) Anil Nandlall SC opened by stating reasons why the respondent (the government), whom he is representing, should be given more time. According to him, the application by the GTU arrived at his office on February 16 and the registry usually requires a period of 14 days to schedule a hearing.
“It was received on the 16th, Friday afternoon, after 1:00… so, that would have given us Monday, Tuesday, Wednesday, three days’ notice… four if you wish… an urgent application made on notice requires a registry to schedule it for hearing within 14 days of its issue. That would have meant that if it was issued on the 16th then one had up to, I think sometime early March first or the second of March… instead it was scheduled for hearing on today’s date. That is to say the 22nd of February, almost 10 days prior to the time permitted by the rules. In addition, the rules further require that it must be served at least ten days before the scheduled hearing day,” he said, while noting that the short notice was in breach of the rules in relation to timing.
In his appeal for the hearing extension date, Nandlall also pointed out that the application made by the GTU spans 59 paragraphs and makes “a plethora of allegations”. These, he said, would require an input from the Ministries of Education, Finance, Local Government, Labour, along with the Office of the President. The AG added that work has already begun on receiving instructions from the various agencies and an affidavit in answer will quickly be filed.
“Abridgement of that [14-day] period will be consented by the respondent. But to answer the allegations that have been raised, we will require the opportunity to put evidence before the court,” he explained to Justice Kissoon.
In his turn, attorney-at-law Darren Wade, who is representing the union, stated that his client has no issue with the court granting the additional time. However, he appealed to the judge for the government’s move to deduct salaries from the striking teachers and its refusal to deduct union dues on behalf of the teachers to be placed on hold, pending the outcome of the matter.
At this point, what was supposed to be a short court appearance turned into approximately two hours as Nandlall argued vociferously against this move contending that the court should not stop the Government from implementing its ‘no work, no pay’ policy.
As the judge gave him the opportunity to present his arguments, several Caribbean precedents were cited by Nandlall. In particular, the AG referenced the 2022 hearing of Donna Marcelle Lusan versus the Government of Grenada, a case said to be similar in nature to the matter in question.
After making the point that Justice Raulston Glasgow, a Guyanese who presided over the matter, ruled in favour of the government’s rightful deduction from Lusan (a teacher)’s salary because she had opted to strike and not work, Nandlall emphasized that Glasgow’s decision was in tandem with the rest of the Caribbean.
Adhered
This argument by the People’s Progressive Party/C (PPP/C)’s Member of Parliament failed to sway Justice Kissoon as he pointed out that the status quo has been in existence since April 1990 and must be adhered to. The judge further pointed out to the AG that the findings presented are better reserved for the substantive matter which was not ongoing at the time.
Furthermore, Justice Kissoon pointed out that the application made by the union had not yet been examined by the court and it would be unfair to allow the government to go ahead with the deductions without first giving an ear to the GTU’s arguments.
In another move to convince the judge, Nandlall argued that the relationship between teachers and the government are like that of an employer and employee and therefore such a relationship is private. He further promised that should the court rule in favour of the deductions being made from the teachers’ salaries, once it has been found at the end of the court case that the government was in the wrong those salaries would be refunded expeditiously.
In response to this, the judge asked Nandlall why the government should go to the length of deducting the salaries when the matter is before the court and then have to go to the trouble of reimbursing the teachers afterwards.
The AG also, in his turn, appealed for the court to order that the teachers call off the strike and return to the classroom.
“Order them to return to the classroom, and then we will not deduct the salaries… the government has a right to deduct the salaries… there is no basis to stop the government from deducting salaries”.
However, Justice Kissoon stated that it was out of his jurisdiction to do such.
During the back and forth between the AG and the judge, the question was posed by the latter on whether or not he should bring forward the matter so that a decision could be made quickly. Wade had no objection to this, but Nandlall continued to push for the overriding of the status quo.
Wade was then given a chance to respond to Nandlall’s arguments. Justice Kissoon then notified Nandlall that the status quo must be preserved and same will be done.
He then ordered that the status quo remain until the matter is determined. The judge also said that the government cannot stop deducting dues from teachers’ salaries on behalf of the union until the hearing of the substantive case.
Unfortunate
When asked afterwards what his take was on the ruling, Nandlall said that it was unfortunate that the court ruled that the deductions of salaries be stayed until the outcome of the matter. He also maintained his belief in the lawfulness of the “no work, no pay” policy and noted that the court’s ruling on the status quo should not have been.
“I spent a long time demonstrating to the judge that the case that is before the court has no merit, that the two conservatory orders that are being sought are going to fail. They cannot be granted in the final analysis. And if they cannot be granted in the final analysis as the law doesn’t support their application, then how can they be granted as an interim? We just felt that he wanted to keep the status quo present until the case has concluded. And he felt compelled to grant the orders, though I believe I was able to persuade him that the law allows the government (in this case the employer) to deduct pay. When labour is not produced in a contract, you’ll see it’s labour for money, if you withhold your labour I must be allowed to withhold my pay. And I believe that the conservatory order in that instance, which compels the government to pay when the teachers are not providing their labour is wrong. It simply deprives the employer of a powerful right that the employer has. You see, in the same way the employer cannot force the employee to work, the employee cannot force the employer to pay for work not done. And unfortunately, that is what the court order is really seeking to do. And that should not have been granted,” he said.
On the other hand, the AG expressed his satisfaction with the court’s decision to expedite the case, ensuring that it will be determined by the end of March. Nandlall emphasized that he was not prepared to give up his right to deduct salaries and expressed gratitude for the accelerated timeframe for the case resolution.
Meanwhile, in a brief interview with the media, Wade expressed satisfaction with the fact that the court sees the union’s application as worthwhile despite the AG’s attempts to make the case look frivolous.
“It’s not that I am pleased. The court upheld the law,” he said.
“We’re satisfied with the first ruling of the judge simply because that is why we brought the matter to court… in fairness to the teachers of Guyana, the act was vexatious in terms of not deducting dues… the judge ruled fairly in our favour in dealing with the matter,” Lyte told the media on the court ruling.
The GTU’s court application outlines a series of unanswered requests for discussions on salary increments sent to the President’s Office and the Ministry of Education. The union seeks court intervention to affirm the legality of its strike action and refute any allegations of non-compliance with legal procedures.
Through its attorney, the union last week on behalf of teachers, sought a range of declarations from the Supreme Court, chief among them, that government’s decision to deduct union dues from their wages and salaries violates the Union’s legitimate expectation.
This the union said is “unreasonable, arbitrary, and capricious.”
In the claim filed against the Attorney General, (the Respondent), the GTU said that government’s allegation of the strike action being illegal; is unfounded and unfair and wants the court to so declare.
It said that government has also been discriminatory and has breached its right to freedom of association and assembly and its right to protection from deprivation of property; all of which it wants the court to also declare.
The substantive hearing of the matter is set for March 20.
