By Tad Stoner
tad@caymannetnews.com 

Complaints Commissioner John Epp has released details of a suit filed on behalf of more than 2,500 public employees - in statutory authorities and government companies - who are forbidden to bring labour complaints to government tribunals.

Appearing before the Grand Court on 28 June, Queen’s Counsel Nigel Meesom, on behalf of Mr Epp, asked Justice Alexander Henderson to interpret the Labour Law to define “public service” to mean the same as “civil service”, and return roughly 2,000 employees of 17 statutory authorities and approximately 500 more in eight government-owned companies to their former status as essentially private workers.

Mr Epp said three employees from both the Health Services and Port authorities had approached his office with complaints, but he was powerless to act. “We’re not set up as a labour tribunal. We have no power to make an order such as ‘employer A must pay employee B’; it’s better if labour machinery designed for that task does it.

“We think it makes sense for the Department of Employment Relations to handle it because they have done it in the past and there is a system set up. But if cannot happen, we don’t mind that much, but we need to get someone to do it.”

The group of 2,500 was virtually disenfranchised by the 2005 Public Service Management Law, which said employees of both statutory authorities and government companies, such as Cayman Airways and Boatswain’s Beach, were part of the Cayman Islands “public service”, and therefore part of the civil service.

As civil servants, the 2,500 employees were prohibited from approaching the Department of Employment Relations (DER), which hears only private-sector complaints and had previously entertained complaints from authority employees.

The 2005 law, however, also created a seven-member Civil Service Appeals Commission (CSAC) for labour grievances by government’s roughly 3,800 core employees. But the commission, citing varied authority and government-company regulations independent of both civil-service procedures and the Public Service Management Law, has rejected jurisdiction.

“Employees in these departments are not hired under the procedures laid down in the Public Service Management Law (the employer is not held to the standards for advertising, short-listing, selecting, etc.), and we in the Appeals Commission do not know what procedures these authorities may apply,” CSAC Executive Director Clyte Linwood wrote to Mr Epp.

“All statutory bodies have a law which governs them (I am not sure whether such law governs how the hiring, dismissal, discipline etc of employees are to be carried out).

“If the Appeals Commission decides to hear an appeal by an [authority] employee, our decision would be based solely on the procedures legislated under the [management law].”

The commission, she wrote, could not know each authority’s law, nor determine if complaints were justified if they were not based on the Public Service Management regulations.

As a result of rejection by both the DER and the commission, public employees are forced to seek justice in the Grand Court, filing formal lawsuits against wrongful dismissal, arbitrary treatment or other unfair labour practices.

The 28 June suit, Mr Epp said, would allow the 2,500 public staffers to resume filing work-related complaints with the DER, restoring the original practice.

“They do not have recourse to an independent tribunal or labour office for their grievances. It’s a hole in the law; perhaps it just wasn’t thought through,” Mr Epp told Cayman Net News.

“A suit in the Grand Court must be brought by an attorney at law and is a process that may be costly depending on the circumstances. It can take months to get a hearing date, and if you are involved in an employment dispute, this, to some people, will effectively bar them from taking proceedings,” Mr Epp said.

“It’s a classic Catch-22,” he said, referring to the 1961 Joseph Heller novel describing a paradox in which every character suffers no matter what choice he makes.

Mr Meesom told the Grand Court that a resolution was vital.

“If this is the correct state of affairs, then employees of the HSA [Health Services Authority], and probably other statutory authorities as well, fall between a crack in the legislative framework,” the Queen’s Counsel said. “The OCC was not designed to be a labour tribunal and may not have the capacity to act in such a role.”

Ms Linwood declined to comment on the suit, but said the legal loophole was not an effort to disenfranchise public-service workers.

“The Public Service Management Law was looking at maintenance of the civil service. The statutory authorities were independent, and no one could go back and decide that law should apply to them. You couldn’t go to the authorities and tell them to pay government salaries and how to hire and how to fire,” she told Cayman Net News.

“The authorities have their own laws: the Health Services Authority Law, the Cayman Islands Monetary Authority Law. That is where the labour procedures should have been identified.”

“What is needed is a body above the boards, there’s a lacuna in the system that needs to be filled; there is no fair process to take appeals,” she said.