KEVON FELMINE

Se­nior Re­porter

kevon.felmine@guardian.co.tt

The Es­tate Po­lice As­so­ci­a­tion (EPA) is call­ing on the chair­man of the Es­sen­tial Ser­vices Di­vi­sion of the In­dus­tri­al Court (ESD), Lar­ry Achong, to re­sign af­ter the Privy Coun­cil crit­i­cised the neu­tral­i­ty of the Spe­cial Tri­bunal’s con­duct in dis­miss­ing its ap­peal last Thurs­day.

In a me­dia con­fer­ence at the EPA’s head­quar­ters in Mara­bel­la yes­ter­day, EPA pres­i­dent Deryck Richard­son said if Achong re­fus­es to step down, Prime Min­is­ter Dr Kei­th Row­ley must re­move him from the po­si­tion so the tri­bunal could obey the coun­cil’s rul­ing.

If this does not hap­pen, the EPA will use le­gal means to get Achong out, as the coun­cil ruled that the tri­bunal should hear and de­ter­mine a ten-year-old mat­ter be­tween the EPA and Roy­al Bank (Trinidad and To­ba­go) Ltd (RBC) with a fresh pan­el. Es­tab­lished by the Civ­il Ser­vice Act, the tri­bunal has the re­spon­si­bil­i­ty to hear and de­ter­mine dis­putes aris­ing from var­i­ous es­sen­tial ser­vices. It com­pris­es the ESD chair­man and two mem­bers he choos­es.

In its May 30 rul­ing on an ap­peal the tri­bunal brought against the EPA, the Privy Coun­cil dis­missed the ob­jec­tions, up­hold­ing the Court of Ap­peal’s or­der, and re­mit­ted the EPA’s dis­pute with RBC to the tri­bunal for a de­ter­mi­na­tion.

It stat­ed, “Any fur­ther hear­ing should take place be­fore a fresh pan­el of the tri­bunal, which, if pos­si­ble, does not in­clude any mem­ber who heard the dis­pute pre­vi­ous­ly or who has had any in­volve­ment in these ju­di­cial re­view pro­ceed­ings.”

On May 15, 2014, RBC ter­mi­nat­ed 42 es­tate con­sta­bles as it de­cid­ed to out­source its se­cu­ri­ty func­tion. On Sep­tem­ber 2, 2014, the EPA re­port­ed a dis­pute to the Min­is­ter of Labour con­cern­ing the dis­missals. The min­is­ter re­ferred the dis­pute to the tri­bunal, as the EPA con­tend­ed that RBC act­ed con­trary to the Re­trench­ment and Sev­er­ance Ben­e­fits Act and that the bank’s ac­tions were con­trary to good in­dus­tri­al re­la­tions prac­tices and es­tab­lished norms and were harsh and un­just.

Richard­son said RBC dis­missed more con­sta­bles in the fol­low­ing years, many of whom strug­gled to find de­cent em­ploy­ment. He said while await­ing a con­clu­sion to the mat­ter, the EPA could not take any ac­tion on their be­half. As Achong heard the dis­pute back in 2018, Richard­son said the Gov­ern­ment must act quick­ly to re­move him so the EPA can get a fair hear­ing and con­clu­sion on be­half of the of­fi­cers.

“There is a moral oblig­a­tion that I think the Gov­ern­ment of Trinidad and To­ba­go needs to act on. It is a judg­ment com­ing out of the Privy Coun­cil. If there is any fair­ness or sense of want­i­ng to pro­tect the cit­i­zens of Trinidad and To­ba­go, the Gov­ern­ment must act,” Richard­son said.

Af­ter hear­ing the mat­ter in 2018, the tri­bunal held that it had no ju­ris­dic­tion to de­ter­mine the mat­ter as the EPA could not rep­re­sent the es­tate con­sta­bles in their dis­pute with the RBC be­cause a branch board had not been es­tab­lished at the time of their dis­missal.

The EPA filed for ju­di­cial re­view, which caused a dis­pute be­tween it­self and the tri­bunal. The dis­pute ques­tioned whether the tri­bunal’s de­ci­sions are amenable in prin­ci­ple to be­ing chal­lenged through ju­di­cial re­view and if the tri­bunal’s re­fusal to deal with the com­plaint brought by the EPA was law­ful.

The High Court held that the tri­bunal’s de­ci­sions are amenable to ju­di­cial re­view but up­held the law­ful­ness of the tri­bunal’s de­ci­sion. Both par­ties ap­pealed to the Court of Ap­peal, which found that the judge was right to con­clude that the tri­bunal de­ci­sions are sub­ject to the su­per­vi­so­ry ju­ris­dic­tion of the High Court.

How­ev­er, it dis­agreed with the judge’s con­clu­sion on whether the tri­bunal had ju­ris­dic­tion to de­ter­mine the dis­pute. The tri­bunal then ap­pealed to the Ju­di­cial Com­mit­tee of the Privy Coun­cil. Rul­ing on the EPA’s in­el­i­gi­bil­i­ty to rep­re­sent the es­tate con­sta­bles, the coun­cil found that even if the tri­bunal had been cor­rect, it would not de­prive the ju­di­cial body of ju­ris­dic­tion to de­ter­mine the dis­pute. The coun­cil said the law re­quired the tri­bunal to hear and de­ter­mine those dis­putes.

“On its face, there­fore, the re­fusal of the Spe­cial Tri­bunal to do so was a breach of its statu­to­ry oblig­a­tion un­der Sec­tion 42. Be that as it may, the tri­bunal’s rul­ing that the as­so­ci­a­tion can­not rep­re­sent con­sta­bles of an es­tate un­less a branch board has been es­tab­lished was ob­vi­ous­ly wrong.”

The coun­cil found the tri­bunal par­tic­i­pat­ed in the pro­ceed­ing in a man­ner ex­pect­ed of an or­di­nary lit­i­gant en­gaged in an ad­ver­sar­i­al dis­pute with an­oth­er par­ty. “There is an ob­vi­ous con­cern that act­ing as if it were a par­ty with an in­ter­est in the out­come of the case is in­con­sis­tent with that role. The con­cern is all the greater when the re­sult of the pro­ceed­ings is that the mat­ter will now be sent back to the tri­bunal for fur­ther ad­ju­di­ca­tion.”

In the coun­cil’s opin­ion, the tri­bunal lost sight of the prin­ci­ples of im­par­tial­i­ty and neu­tral­i­ty, which should gov­ern its con­duct as a ju­di­cial body in its de­ci­sion to bring this fur­ther ap­peal. Guardian Me­dia called Achong’s cell­phone twice yes­ter­day for a com­ment on the mat­ter, but there was no re­sponse.