Labour Law applies to authorities

(CNS): Employees of the Health Services Authority (HSA) and other statutory authorities can take their employment-related complaints to the Department of Employment Relations (DER), following a ruling by Grand Court Judge Justice Alex Henderson. The Court found that the acting director of DER was wrong to consider that he did not have jurisdiction over such complaints.

The question of which department HSA employees could take their complaints to was contained in a submission to Grand Court by Complaints Commissioner Dr John Epp, who applied for an interpretation of the Complaints Commissioner Law to decide if he had jurisdiction to investigate complaints made against the HSA by employees or former employees.

Justice Henderson said in his reasoning that the answer depended upon interpretation of the Labour Law and the Public Service Management Law (PSML), and of the term “public service” in these two laws.

From time to time between 2002, when the Health Services Authority Law came into effect, and July 2006 when a revision of the PSML came into effect, employees of the HSA sought and obtained redress for employment-related grievances by complaining to the Director of Labour under the Labour Law.

However, the revised PSML Law (Section 2) defines the term “public service” to mean “the civil service and employees of statutory authorities and government companies” and the Labour law states that “this Law shall not apply to the public service …”

“The Director of Labour, having received legal advice on the subject, has now taken the position that the quoted definition in the PSML ‘effectively prevents’ HSA employees from seeking redress under the Labour Law,” wrote Justice Henderson. There is an appeals process for employment complaints in the PSML but the process is available only to “a staff member or civil servant”, terms that are clearly defined in the PSML.

“These definitions indicate a clear intention of the Legislative Assembly to distinguish between public servants (a term which includes employees of a statutory authority) and civil servants (a term which does not). The appeals process under the PSML is unavailable to employees of statutory authorities and this was intended,” Justice Henderson wrote.

“If the Acting Directorof Employment Relations is correct in his current view of the Labour Law, employees of the HSA (and other statutory authorities) with employment-related grievances have nowhere to turn.”

He explained that the PMSL is unavailable to them, and the Acting Director of DER considers that he no longer has jurisdiction. “It is in this context that the Complaints Commissioner asks if he may exercise his jurisdiction with respect to such a complaint.”

However, Justice Henderson found nothing in the PSML of 2006 to suggest an intention on the part of the Legislative Assembly to remove from HSA employees the right of appeal under the Labour Law, which they had enjoyed up to that point. Nor was there any reason to think that the LA, while providing carefully for the right of appeal for civil servants, intended their counterparts working for statutory authorities to have no such rights.

The Court found that employees of the HSA are not engaged in “the public service” within the meaning of the Labour Law and can, therefore, use the complaints procedure within that Law.

“The Office of the Complaints Commissioner is a place of last resort,” stated Dr Epp. “Residents must first try remedies available to them within the internal complaints processes of each government entity before the OCC can investigate the entity.”

Dr Epp is confident that the new Director of Employment Relations, Mr. Lonnie Tibbetts, will embrace the chance to assist employees of statutory authorities.

The OCC is located on the 2nd floor, 202 Piccadilly Centre, Georgetown, Grand Cayman, phone number (345) 943 2220. The website is www.occ.gov.ky.