Justice of Appeal Dawn Gregory on Monday denied the Government’s application for a stay of Justice Nareshwar Harnanan’s ruling that deductions made from the pay of striking Linden nurses in 2021 be repaid.
Justice Harnanan in November last year had ruled that the deductions were illegal and ordered that they be paid by December 31st 2023. The state did not comply with that order and months after indicated that it will appeal the entire judgment, asking that a stay be granted on the repaying of the monies until the hearing of the appeal and decision.
The Government through the Solicitor General Nigel Hawke had argued that the actions by the Ministry of Health were justified under the Essential Services (Arbitration) Act Cap 54:01 (The Essential Services Act) as the employees concerned were nurses.
He had stated that the basis for the stay was that if it was not granted the intention of the legislature would be subverted in respect to essential services. It was Hawke’s position that the workers were essential employees and made it clear that it was the order to repay the deductions on or before December 31st, 2023 that the State seeks to have stay. He submitted that as essential workers, those employees were required to adopt the procedures set out in the Essential Services Act which they had failed to do.
But it was pointed out by the union that the salary deductions were imposed in some cases for periods as far back as 2019 without notice to the employees and without providing them with the opportunity to make representatives on their behalf before those deductions were made.
Justice Gregory in an in chambers ruling on Monday found that the order to repay the monies was a consequence of Justice Harnanan’s finding that the deductions were made without the nurses having been afforded natural justice in relation to alleged offences. She noted as well that since the application of the Essential Services Act has not been established (an argument that was proffered by the state as to the reason behind the reduction), it seems fair to conclude that the employees were disciplined under Section G of the Public Service Rules without due process.
As to any ruin to the State, Justice Gregory pointed out that it was confirmed by the parties that the employees are still in employment and as such if the State’s appeal is successful there will be an opportunity for it to recoup what would have then been lawful deductions. The judge also ordered that the state pay $100,000 in costs.
Since the judge’s ruling November 2nd last year, the nurses’ representative the Guyana Public Service Union (GPSU) had sought to have the deductions repaid to no avail.
In his ruling, Justice Harnanan declared that the deductions made from the salaries of the nurses for “alleged breach of the public service rules relating to their absence without leave or adequate excuse was unlawful.”
The Judge then further went on to order that the deductions be repaid no later than December 31st, 2023. Costs were also awarded to the GPSU in the sum of $100,000 to have been paid by the same deadline; failing which the defendants—the AG and PS—would be held in contempt.
The Union had argued that the memorandum for “absenteeism and persistent unpunctuality” dated March 10th, 2021 issued under the hand of the PS of the Ministry of Health was “contrary to, and in breach of the Public Service Rules and therefore unlawful, illegal and a nullity.”
The Union was represented by Attorney-at-Law Mandisa Breedy.
Back in March of 2021, nurses at the Linden Hospital Complex (LHC) were engaged in protest action, as they called for the removal of Chief Executive Officer, Rudolph Small.
Small had made disparaging statements about nurses when he stated that they (the nurses) would clock in at the LHC and then leave for extramarital rendezvous.
In June that year, the GPSU instituted proceedings by way of a Statement of Claim against the Ministry of Health and the AG, seeking among other things, a declaration that the deductions for “Absenteeism and persistent unpunctuality” from the wages and salaries of the nurses was “unlawful, illegal and a nullity.”
The State had noted that the deductions were made after the nurses refused to turn up to work and were engaged in a strike which the health ministry considered “illegal and premature.”
The ministry had noted that by Memorandum of March 10th, 2021 it had notified employees that deductions would be made from their salaries for absenteeism and persistent unpunctuality at work.
The Ministry of Health, initially dismissed Small but this decision was later rescinded.
Small had apologized for his words but the nurses and GPSU were adamant that he be removed.
The nurses had staged daily industrial action in the month of March, 2021.
