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Duke case adjourned

State, PSA need time to gather witnesses
Saturday, July 12, 2014

A last-ditch legal challenge has delayed a ruling by the Industrial Court on whether Public Services Association (PSA) president Watson Duke breached an injunction preventing Immigration Division staff from continuing to withhold their services over health and safety issues. 



After hearing lengthy submissions during a four-hour hearing at the St Vincent Street, Port-of-Spain, courthouse, the five-member panel of judges were forced to postpone the trial until next Friday to allow witnesses for the State and the union to be brought to court to testify.


But before adjournment, the panel was able to hear brief testimony from acting Chief Immigration Officer Gerry Downes, the main witness of Labour and Small and Micro Enterprise Development Minister Errol Mc Leod, who obtained the injunction against Duke and the workers last week, after almost two months of activity led by the union virtually crippling the division’s operations.  


The proceedings, in which McLeod has asked the court to jail Duke and Purdy Babwah, one of the immigration officers who refused to work at the department’s Frederick Street office after the injunction was granted last Thursday, was almost stopped before it began when the union’s attorneys submitted that the court should not hear the case as it was not an impartial tribunal. 


Refering to the role of the Cabinet in the procedure for appointing and extending terms of judges, Duke’s lawyer, Douglas Mendes, SC, said the judges’ decision in the case was may be biased by their lack of security of tenure in their posts. Saying the proceedings were brought by McLeod on the advice of the Attorney General, the Cabinet minister entrusted with the responsibility of deciding the fate of the judges, Mendes said: “The impression of the public is that you are beholden on the executive for continuity on their office.”


But the head of McLeod’s legal team, Russell Martineau, SC, described Mendes’ comments as ill-founded and misplaced, noting he provided no empirical evidence to substantiate his claim. “For decades we have had confidence in this court,” Martineau said, as he sought to dispel Mendes’ claim of a perceived lack of independence of the court. 



Martineau said the judges were entrusted with the responsibility of dealing with instances of contempt against its orders and injunctions and had to do so in Duke’s case to protect the court’s dignity. “When a court makes an order it must be obeyed. If not, we then have the law of the jungle,” Martineau said.



Applications dismissed

After taking almost half an hour to discuss the issue with her colleagues, Industrial Court president Deborah Thomas-Felix  returned and announced that the court had decided that it had the jurisdiction to continue to preside over the case. Thomas-Felix also dismissed an application from Mendes that the judges refer the issue of the constitutionality of judge’s decision not to recluse themselves to the High Court. Judges Lawrence Achong, Albert Aberdeen, Kyril Jack and Kathleen George-Marcell are also on the panel. 


In his pre-trial remarks which followed the decision, Mendes said his clients’ defence to the contempt allegation was that the staff’s action in refusing to work over health and safety issues was exempted from the definition of industrial action under the Industrial Relations Act. 



Immigration boss admits to issues

Mendes, in his cross-examination of Downes, questioned about a failing inspection certificate prepared by Occupational Safety and Health Agency last Friday. “Do you expect your staff to be satisfied with that?” Mendes asked. “No I don’t expect them to be satisfied,” Downes responded. Downes admitted that there had been issues with toilets, ceiling tiles and hanging wires at the office, but claimed steps have been taken to rectify them since the inspection. 


He also admitted management had not complied with some aspects of occupational safety and health regulations, including having no fire inspection approval for the building and not establishing a clear policy for pregnant employees. “Your place might not be safe in a fire?” Mendes asked. Downes answered, “Correct.”  In an interview after the hearing, Duke said he was advised by his lawyers no to comment on the case. 


However, he said: “In the interest of my members and the public, we will continue to look at ways of bringing some relief to both sides. So let’s see how that turns out over the weekend and how it materialises next week. “We have a strong belief in our position, but we will not try to interfere with the judgment that the court is about to make.”


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