Industrial relations ‘turned upside’ by Justice Kissoon’s decision – Gov’t


See below the full statement issued by the Government of Guyana: 


The law, and indeed industrial relations in Guyana, in both the public and private sector, have been turned upside by a decision of High Court Judge Sandil Kissoon today in the GTU case. This ruling is reminiscent of the decision that thirty-three (33) is not a majority of sixty-five (65). No doubt, like that decision, it will be appealed to the CCJ, if necessary, where that decision was reversed. The public is very much aware of these struggles endured in pursuit of justice.

In the ruling today, the High Court has completely dismantled a salutary principle which has struck a vital balance between the employer and the employee in industrial relations for centuries. The Court ruled that the ‘no work no pay’ principle no longer applies to Guyana –  a position that does not obtain either in the Commonwealth Caribbean or indeed this hemisphere. The repercussions that will flow from this ruling will have devastating impact on industrial relations both in the private and the public sector. Workers now can strike with impunity and they will have to be paid. In so ruling, and in an effort to find a constitutional right for the worker, the Court simultaneously is depriving the employer of his property (wages). By this ruling, the employer will have to pay for work not done and value not received. That payment constitutes the employer’s property which is also constitutionally protected as a right.

In arriving at this conclusion, the Court failed to recognize the difference between a freedom to strike, which is provided for by the Constitution, and a right to strike, which is not provided for. The Court has conflated these two different concepts, ignoring the profound repercussions. The exercise of the freedom would have allowed the principle of ‘no work no pay’ to apply, hence the drafters of the Constitution using the term freedom to strike. However, assuming that it is a ‘right’, no right is absolute. Every right is subject to the rights of others. By converting this freedom into a right, the Court has now made strike actions subject to payment of wages, as the exercise of a right cannot attract an adverse consequence. In so doing, the Court has ignored the provisions of the Labour Act and the very Constitution, both of which recognize wages as a reward for work done or to be done. Thus, protecting the fundamental right of the employer to his property.

In short, the Court has not only ignored existing legislation but has trespassed upon the lawmaking power of Parliament by making new law rather than interpreting existing law, violating the essence of the separation of powers doctrine.

Similarly, the Court has ruled that the Government’s decision to terminate a gratuitous agency service that it has offered the Guyana Teacher’s Union by the deduction of union dues from teachers’ salaries and remitting same to the Union as arbitrary, unlawful and unconstitutional. This service by the Government is undisputably not grounded in law. It forms part of the Executive’s policy and decision making and ought not to be reviewed by a Court.

In order to derive a jurisdiction to review it, the Court found that the deduction and remittance of union dues by the Government is an integral part of the trade union’s constitutional right and that stopping this gratuitous service would deprive the union of their ‘lifeblood’ – a quantum leap! It is common knowledge that there are several trade unions in Guyana collecting their own union dues. Millions of unions around the world are collecting their own union dues, surviving without any government collection service of their ‘lifeblood’.

Worse yet, without any evidence on the record, the Judge found that the Government has not terminated this service in respect of other unions. But, in fact, as the Nanda Gopaul case against the Public Service Union illustrated, a case put before the Court, the Government actually terminated the very service in respect of the Public Service Union, twenty-four (24) years ago. That union is still functioning.

Based upon reports received, the Government is appalled at the intemperate and injudicious language used, by the Judge, in particular in respect of outstanding public officers who are simply discharging their public duties and only became part of the case in the performance of those duties. Judges enjoy legal immunity on the bench and must be cognizant that they cannot be sued for what they say or write. Language befitting of the prestige and nobility which attach to the office of a judge is therefore a prerequisite. It must be within the realm of the Executive and the public to demand such probity from our judges. They owe the citizenry no less.

The Government wishes to make it clear that pursuing the recourse of an appeal is not in any way whatsoever intended to detract from its unwavering commitment to address all the reasonable and legitimate concerns of our teachers and indeed, all of our workers. The appeal will be pursued for the larger implications the decision will have on the industrial climate in our country and to attempt to restore the law to its proper course.

1 Comment
  1. Derk says

    In my view if Industrial relations is ‘turned upside down’ then this is a very dangerous precedence which can or may affect cases in the future .
    This now makes me wonder whether a judge has to be trained to handle matter such as this with may require a Judge be trained in these matters.
    I do believe the world is advancing at a fast pace and Guyana should not accept ‘jack of all trade ‘at this level.

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