Complaints Commissioner waits for Court decision

| 03/09/2008

CNS): Employees of statutory authorities and government companies are stuck in legal limbo if they have employment grievances, since the Department of Employment Relations (DER) says, essentially, it does not have jurisdiction because they are civil servants, and the Civil Service Appeals Commission (CSAC) says it cannot handle appeals because they aren’t civil servants. (Left: Complaints Commissioner Dr John Epp)

To clarify the situation, Complaints Commissioner Dr John Epp has brought an application to Grand Court to interpret a section of the Complaints Commissioner Law which says that the Office of the Complaints Commissioner (OCC) does not have jurisdiction to investigate a grievance if the complainant has the right of appeal, reference or review before a tribunal constituted under any law.

The Commissioner is asking for a Grand Court decision (as allowed by the Complaints Commissioner Law) as to whether he has jurisdiction to investigate employment complaints by two former employees of the Health Service Authority (HSA). “If there is no remedy available to the employees of the HSA with the DER or with the CSAC then the OCC would have jurisdiction, although … I do not consider this to be a satisfactory state of the law,” Epp said in an affidavit to the Court.

In effect, to answer his application, the Court must clarify the Labour Law and the Public Service Management Law (PSML) in respect to this issue. The Civil Service Appeals Commission operates under the PSML, which does not apply to authority employees (defined as “public servants” to differentiate them from “civil servants”) except for the Code of Conduct and Statement of Values, according to Colin Ross, who crafted the law.

Furthermore, the Executive Director of the CSAC, Clyte Linwood, pointed out that statutory authorities do not operate under the PSML and so do not necessarily hire according to procedures laid out in the law. Therefore, the CSAC cannot hear such appeals.

On the other hand, in a letter to the Commissioner that was submitted as part of the affidavit, the Acting Director of DER wrote that, according to the Legal Department, authority employees cannot seek redress from the DER since the law does not apply to those in “public service”. Their interpretation ofthe PSML is that this term covers authority employees under that law, and so they would not be protected by the Labour law.

“If this is the correct state of affairs then employees of the HSA, and probably other statutory authorities as well, fall between a crack in the legislative framework. This is likely to be an unintentional crack which rises from the definition of public service in the legislation,” the affidavit says.

Epp queries the DER’s interpretation of the Labour Law in his affidavit and suggests that the department does in fact have jurisdiction over employees of statutory authorities.

Justice Henderson, who heard the argument in court in June, is expected to deliver his decision and reasoning in the near future.



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