In one of the most important cases decided to date by the Caribbean Court of Justice (CCJ), the court clarified the parameters of the duty to consult, an important feature of Guyana Constitution, as well as various laws in the country.
It all started on October 20, 2017, when the applicants- the Guyana Agricultural and General Workers Union (GAWU) and National Association of Agricultural Commercial and Industrial Employees (NAACIE) initiated an action in the High Court of Guyana, which sought to quash the decision by Cabinet and the Guyana Sugar Corporation (GuySuCo) decision to sever the employment of approximately 4,400 sugar workers at, and to close the operations of Rose Hall and Enmore/La Bonne Intention sugar estates.
The main grounds advanced by the union against that closure decisions was that they had not been adequately consulted by the respondents.
The unions argued that this was in breach of the provisions of the Termination and Severance Pay Act and the Trade Union Recognition Act, which required GuySuCo to consult with unions before making the decision to close.
As such, the Government breached the legitimate expectation it created by representing to GAWU and NAACIE that meaningful consultations would be undertaken.
Chief Justice Roxane George had dismissed the application stating that the applicants participated in the Commission of Inquiry on the sugar industry.
In describing her decision, the CCJ stated that “She looked specifically at the allegation of inadequate consultation and ruled that “the Commission of Inquiry held was sufficient to satisfy the obligation to consult and that the criminal remedies contained in the acts provided a sufficient alternative form or relief for the Applicants.”
As to the Mandamus Order, the judge held that Section 23(4) did not create a general public duty and significantly did not bar an employer from closing an entity for non-compliance with Section 23(4) and (5).
The acting Chief Justice pointed out that Section 23(6) provided a penalty for non-compliance and refused to grant the order.
The union filed a Notice of Appeal on November 17, 2017 as well as an application for an urgent hearing on or before December 29, 2017.
The Justices of Appeal denied the application for an urgent hearing on December 21, 2017 and set down the hearing for January 15, 2018.
On February 8, 2018, the Court of Appeal dismissed the appeal.
There was no written decision. The court delivered an order, which recounted the history of the litigation and then simply ordered “that this appeal be and is hereby dismissed and the Order of the Honourable Madam Chief Justice (ag) Roxane George-Wiltshire dated the 10th day of November 2017 be affirmed.”
GAWU and NAACIE then appealed to the CCJ arguing the decision of the Chief Justice and Court of Appeal was flawed since the inquiry could not be sufficient consultation.
The unions argued that the Attorney General could not represent GuySuCo since it was a corporation and that the Government and GuySuCo breached their duty to consult.
The Government opposed the application stating inter Alia, that the AG could represent GuySuCo. They also said that the appeal was academic and therefore not justiciable, and stating that there had been material non-disclosure.
The CCJ sided with the unions stating that “We agree with the applicants that the alleged academic nature of the appeal should not prevent the hearing of the appeal in this case.” CCJ said that the determination of the dispute is of national importance since there is a real possibility that the remaining three estates can be closed without adherence to the respondents’ duty to consult.
It was also pointed that GuySuCo failed to comply with its duty to consult during the prior closure of Wales Estates.
It was pointed out that the duty to consult is a regular feature in Guyanese legislation and the Constitution and that union members’ constitutional rights need to be determined to prevent future abuses.
According to CCJ, rarely do litigants get an opportunity or have the resources to reach the Caribbean Court of Justice on matters concerning the duty to consult since matters become moot during High Court proceedings.
Guidance on Public Matters
While the CCJ found as a matter of fact that the Government and GuySuCo satisfied the minimum standards of consultation, in dismissing the appeal, it emphatically stated that, “This is not to say that the process of consultation was perfect or ideal.
“In a matter of such national importance impacting such large numbers of workers, the process could have been more extensive and more responsive to the concerns of the applicants. Notwithstanding the absence of a statutory obligation, the respondents ought to have given a considered response (whether written or oral) to the GAWU’s proposals explaining why they were not adopted.”
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