Elvis Daniel Addison Thomas Kenroy Johnson Oswald Robinson (in his representative capacity as President of the St. Vincent and the Grenadines Union of Teachers) Claimants/respondents v The Public Service Commission The Attorney-General Defendants/Applicants [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Thom, J
• Judgment Date: 16 December 2013
• Judgment citation (vLex): [2013] ECSC J1216-3
• Court: High Court (Saint Vincent)
• Docket Number: HIGH COURT CIVIL CLAIM NO. 31 OF 2013
• Date: 16 December 2013

[2013] ECSC J1216-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CIVIL CLAIM NO. 31 OF 2013

Between:

Elvis Daniel

Addison Thomas

Kenroy Johnson

Oswald Robinson (in his representative capacity as President of the St. Vincent and the Grenadines Union of Teachers)

Claimants/respondents

and

The Public Service Commission The Attorney-General

Defendants/Applicants

Appearances:

Mr. J. Thomas, Ms. S. Barnwell and Mr. R. Ferguson for the Claimants/Respondents.

Mr. R. Williams and Ms. C. Harper for the Defendants/Applicants.

Thom, J

1 On the 22 ^nd day of February 2013 the Claimants filed a Fixed Date Claim Form in which they seek among other reliefs a declaration that Article 16 of the Collective Bargaining Agreement ("the Collective Agreement") between the Government of Saint Vincent and the Grenadines ("the Government') and the Saint Vincent and the Grenadines Teachers' Union ("the Teachers' Union") does not offend Section 26(1)(d) of the Constitution of Saint Vincent and the Grenadines; adeclaration that their fundamental right to property as guaranteed by section 6of the Constitution has been violated; and damages for breach of their constitutional rights.

2 First hearing of the Claim was fixed for 24th April 2013.

3 On the 16 ^th day of April 2013 the Defendants filed an application to strike out the Fixed Date Claim.

BACKGROUND

4 It is useful to give a brief background of this case.

5 On the 3 ^rd day of November 2005 the Teachers' Union of which the Claimants are all members signed a Collective Agreement with the Government. Article 16 of the Agreement reads as follows:

"ELECTION LEAVE

A member of the Union of at least three (3) years standing, shall on application, be granted leave-of-absence to contest National/General/Local Elections. The Leave of Absence shall be no pay leave for a period not exceeding six (6) months. In the event that the member is unsuccessful, that member shall return to his/her original post or one of equivalent status, all benefits intact. The resumption of duty must be at the beginning of the school term."

6 All of the Claimants contested the December 2010 General Election and they were all unsuccessful. Prior to nomination day all of the Claimants resigned their post as teachers. The Claimants alleged they were forced to resign. Having been unsuccessful at the polls, they applied to the Public Service Commission to reenter the Public Service and their application was unsuccessful. Subsequently, they instituted these proceedings.

7 The grounds on which the Defendants seek to have the Fixed Date Claim struck out are as follows:

• "(1) The Claimants failed to obtain leave as required by S 56 of the CPR before bringing the claim.

• (2) The Claimants' cause of action is against public policy and void as it seeks to enforce an agreement which contravenes S 26(1)(d) of the Constitution of Saint Vincent and the Grenadines Cap. 10 of the Laws of Saint Vincent and the Grenadines.

• (3) Article 16 of the Collective Bargaining Agreement seeks to usurp the functions of parliament and the entrended provisions set out in S38 of the Constitution.

• (4) The Claimants having duly resigned from their positions held in the public service cannot compel the defendants to reinstate them to their original teaching posts or post of equivalent status.

• (5) The Claimants having been duly referred to the restrictive provisions of S 26(1)(d) of the Constitution which does not permit a public officer to be qualified to be elected or appointed as a representative or Senator and the Claimants then subsequently deciding to resign from the Public Service cannot complain that they had a legitimate expectation that the Defendant would honor the terms of the agreement.

• (6) The Claimants were not parties to the Agreement and cannot maintain an action in their own name.

• (7) Articles 1 -6 and 31 of the Agreement provides for the resolving of disputes regarding the interpretation of alleged violation of any clause in the agreement or for any arbitration award.

8 The Claimants opposed the application.

SUBMISSIONS

9 At the hearing Mr. Richard Williams did not pursue the first ground of apposition that the Claimants had not obtained leave pursuant to Part 56 of CPR 2000, in my opinion, rightly so, since the Claimants did not require leave of the court. Mr. Williams also informed the court that he would not pursue grounds 6and 7of the application.

10 Mr. Richard Williams submitted that the Fourth Named Claimant Oswald Robinson has no locus standi. The proper party is the Teachers' Union. Mr. Richard Williams relied on the Trade Union Act of Saint Vincent and the Grenadines (St. Vincent), Halsbury's Laws of England 3rd Ed. Vol. 47 at 1007, and the case of Caesar v The British Guiaro Mine Workers' Union (1959) 1WIR 232.

11 Mr. Williams next submitted that the Agreement contravenes section 26 (1) (d) of the Constitution and is unenforceable since only Parliament by atwo-thirds majority can permit public officers to contest elections the Government cannot confer this right via a contract. Mr. Williams next submitted that estoppel by representation or otherwise does not arise as estoppel is a concept in private law and is not applicable in public law -see R v East Sussex County Council; ex p Reprotech (PebshamJ...