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Termination illness
published: Sunday | December 16, 2007
Orville Taylor, Contributor
Based on recent developments one would have felt that the letters 'PSC' are a Jamaican dirty word. Then again, they might be. Moving with the deftness of a chess grandmaster, the Government has pressed the Governor-General into action and the members of the Public Service Commission (PSC) have been dismissed. In fact, they have been more 'dissed' than they will be missed.
Supposedly, the 'revocation' of the appointments has to do with their misconduct pursuant to Section 124.5 (d) of the constitution. The Opposition Leader is crying foul, but whether fowl, fish or dead cat, it stinks.
The manifest reason for the dismissals seems to be the impasse over the commission's refusal to relent on its recommendation that former Bruce Golding acolyte, the 'brainiac' Professor Stephen Vasciannie, should be appointed as the next Solicitor General.
One can hardly imagine that misconduct from an independent body is the same as not bowing to political pressure. However, this is Jamaica and people can threaten to not 'ap-Portian' public entitlements if there is no political change of course.
Another purported rationale for concluding that these stalwarts of Jamaica society have misbehaved is their erroneous judgment that an erstwhile terminated public officer was properly removed from his job. It was later held by the Supreme Court that the ruling of the commission was wrong in law.
Not normal
Call me stupid or legally ignorant, but is it not normal for higher courts sometimes to overrule judgments of lower courts or tribunals? In fact, that is the very basis upon which the principle of natural justice is built. Let us be logical. When a person is convicted of a crime by a Resident Magistrate and held to be guilty by the Supreme Court, does this mean that the Court of Appeal should recommend the dismissal of the first judges for misconduct? You know the answer!
Let's do a short course on termination of employment. Under the Employment Termination and Redundancy Payments Act (ETRPA) of 1974, persons can be dismissed either for cause or by notice and possibly with a redundancy payment. During the first 90 days of probation, neither reason nor notice is required. This is called a 'summary dismissal'. Thankfully, the Government has completed its 90.
'Ginalship'
Over the years, government has taken on powers over the destiny of its workers that do not exist in the private sector. First of all, in Section 1 of the Staff Orders for the Public Service, it is declared that the relationship between the Government and its employees is not a contract of employment. The 'ginalship' with this arrangement is that public sector workers cannot seek the same kind of protection that is typical to the average unionised person working under a contract of employment.
Public servants are not all that difficult to dismiss. It might be more onerous, but senior public officers can be 'retired in the public interest', or dismissed after being referred to the commission. Junior officers can be sent home by heads of departments. Generally, there is no appeal beyond the commission unless it made an 'error in law'.
In the practice of industrial relations in Jamaica, since the passage of the Labour Relations and Industrial Disputes Act (LRIDA) in 1975, Section 7 established an Industrial Disputes Tribunal (IDT). This IDT is a tripartite body comprising nominees by employers and trade unions, as well as persons appointed by Government. Given the potentially divisive nature of Jamaica's multiunion environment and the tribalism that coloured our politics since the early 1970s, it became even more important to create bodies that were seen as impartial, multilateral, consensual and most significantly, free from political interference.
The IDT
The independence of the IDT is all the more indispensable because it has powers that no other court in this country has. Unlike Resident Magistrates' courts, and even the Supreme Court, it can, not only find that a dismissal is unjustifiable, it can go further and order compensation and full reinstatement under Section 125 (c). Not even the Court of Appeal can order a restoration of the contract of employment once a dismissal has taken place. For this reason, the IDT as an institution and its members, must be beyond reproach. This is why in 2005, I vehemently opposed the union leaders, some of whom are now in government, and some in Opposition, when they attempted to disrespect the IDT.
This is the industrial relations system created by the leading trade unionists and politicians of the early 1970s. Michael Manley and Hugh Shearer were the leaders of both blocs, and Portia Simpson and Bruce Golding were political debutantes.
Disputes
Nonetheless, no government since 1975 has chosen to tamper with the British colonial system that treats public sector workers as 'special'. The LRIDA explicitly states that disputes regarding the appointment or termination of employment of public sector workers cannot be referred to the IDT. Rather, they can be only determined by the appropriate services commission.
Interestingly, awards of the IDT can be challenged 'on a point of law'. This implies that it is acceptable that a competent and neutral set of adjudicators can err.
Given that public servants have far more strategic importance to the nation than other workers, it is even more desirable for them to have contract of employment that are enforceable by a panel of adjudicators with the highest level of competence and scrutiny. Therefore, the Constitution dictates that the PSC's members should be appointed upon consultation with the Leader of Opposition.
The move is a bad one because we pride ourselves on the independence of the public sector. If the Government does not like the system, it should procure the two-thirds majority and change the Constitution.
Dr. Orville Taylor is senior lecturer in the Department of Sociology, Psychology and Social Work at the University of the West Indies, Mona.
published: Sunday | December 16, 2007
Orville Taylor, Contributor
Based on recent developments one would have felt that the letters 'PSC' are a Jamaican dirty word. Then again, they might be. Moving with the deftness of a chess grandmaster, the Government has pressed the Governor-General into action and the members of the Public Service Commission (PSC) have been dismissed. In fact, they have been more 'dissed' than they will be missed.
Supposedly, the 'revocation' of the appointments has to do with their misconduct pursuant to Section 124.5 (d) of the constitution. The Opposition Leader is crying foul, but whether fowl, fish or dead cat, it stinks.
The manifest reason for the dismissals seems to be the impasse over the commission's refusal to relent on its recommendation that former Bruce Golding acolyte, the 'brainiac' Professor Stephen Vasciannie, should be appointed as the next Solicitor General.
One can hardly imagine that misconduct from an independent body is the same as not bowing to political pressure. However, this is Jamaica and people can threaten to not 'ap-Portian' public entitlements if there is no political change of course.
Another purported rationale for concluding that these stalwarts of Jamaica society have misbehaved is their erroneous judgment that an erstwhile terminated public officer was properly removed from his job. It was later held by the Supreme Court that the ruling of the commission was wrong in law.
Not normal
Call me stupid or legally ignorant, but is it not normal for higher courts sometimes to overrule judgments of lower courts or tribunals? In fact, that is the very basis upon which the principle of natural justice is built. Let us be logical. When a person is convicted of a crime by a Resident Magistrate and held to be guilty by the Supreme Court, does this mean that the Court of Appeal should recommend the dismissal of the first judges for misconduct? You know the answer!
Let's do a short course on termination of employment. Under the Employment Termination and Redundancy Payments Act (ETRPA) of 1974, persons can be dismissed either for cause or by notice and possibly with a redundancy payment. During the first 90 days of probation, neither reason nor notice is required. This is called a 'summary dismissal'. Thankfully, the Government has completed its 90.
'Ginalship'
Over the years, government has taken on powers over the destiny of its workers that do not exist in the private sector. First of all, in Section 1 of the Staff Orders for the Public Service, it is declared that the relationship between the Government and its employees is not a contract of employment. The 'ginalship' with this arrangement is that public sector workers cannot seek the same kind of protection that is typical to the average unionised person working under a contract of employment.
Public servants are not all that difficult to dismiss. It might be more onerous, but senior public officers can be 'retired in the public interest', or dismissed after being referred to the commission. Junior officers can be sent home by heads of departments. Generally, there is no appeal beyond the commission unless it made an 'error in law'.
In the practice of industrial relations in Jamaica, since the passage of the Labour Relations and Industrial Disputes Act (LRIDA) in 1975, Section 7 established an Industrial Disputes Tribunal (IDT). This IDT is a tripartite body comprising nominees by employers and trade unions, as well as persons appointed by Government. Given the potentially divisive nature of Jamaica's multiunion environment and the tribalism that coloured our politics since the early 1970s, it became even more important to create bodies that were seen as impartial, multilateral, consensual and most significantly, free from political interference.
The IDT
The independence of the IDT is all the more indispensable because it has powers that no other court in this country has. Unlike Resident Magistrates' courts, and even the Supreme Court, it can, not only find that a dismissal is unjustifiable, it can go further and order compensation and full reinstatement under Section 125 (c). Not even the Court of Appeal can order a restoration of the contract of employment once a dismissal has taken place. For this reason, the IDT as an institution and its members, must be beyond reproach. This is why in 2005, I vehemently opposed the union leaders, some of whom are now in government, and some in Opposition, when they attempted to disrespect the IDT.
This is the industrial relations system created by the leading trade unionists and politicians of the early 1970s. Michael Manley and Hugh Shearer were the leaders of both blocs, and Portia Simpson and Bruce Golding were political debutantes.
Disputes
Nonetheless, no government since 1975 has chosen to tamper with the British colonial system that treats public sector workers as 'special'. The LRIDA explicitly states that disputes regarding the appointment or termination of employment of public sector workers cannot be referred to the IDT. Rather, they can be only determined by the appropriate services commission.
Interestingly, awards of the IDT can be challenged 'on a point of law'. This implies that it is acceptable that a competent and neutral set of adjudicators can err.
Given that public servants have far more strategic importance to the nation than other workers, it is even more desirable for them to have contract of employment that are enforceable by a panel of adjudicators with the highest level of competence and scrutiny. Therefore, the Constitution dictates that the PSC's members should be appointed upon consultation with the Leader of Opposition.
The move is a bad one because we pride ourselves on the independence of the public sector. If the Government does not like the system, it should procure the two-thirds majority and change the Constitution.
Dr. Orville Taylor is senior lecturer in the Department of Sociology, Psychology and Social Work at the University of the West Indies, Mona.