Derek Achong

Se­nior Re­porter

derek.achong!guardian.co.tt

A High Court Judge has re­versed a col­league’s de­ci­sion to or­der the Pub­lic Ser­vices As­so­ci­a­tion (PSA) to pay its for­mer long-serv­ing pres­i­dent Wat­son Duke a pen­sion while he pur­sues his law­suit over its fail­ure to pay it.

The re­ver­sal de­ci­sion grant­ed by Maris­sa Robert­son was an­nounced by the as­so­ci­a­tion in a press re­lease is­sued yes­ter­day af­ter­noon.

In June, Duke filed a law­suit con­tend­ing that the union breached his em­ploy­ment con­tract by fail­ing to pay his al­leged­ly le­git­i­mate pen­sion af­ter he re­signed from the post in De­cem­ber 2021 in or­der to ful­fil his short-lived role as To­ba­go House of As­sem­bly (THA) deputy chief sec­re­tary.

Duke sought an in­junc­tion as he claimed that he is suf­fer­ing ex­treme fi­nan­cial hard­ship in­clud­ing miss­ing mort­gage pay­ments and ac­cu­mu­lat­ing a $130,000 cred­it card debt.

It was grant­ed by Jus­tice Frank Seep­er­sad on June 28.

In ap­ply­ing to set aside the in­junc­tion, PSA’s lawyers Dou­glas Mendes, SC, and Kelvin Ramkissoon claimed that they were un­able to present their views on the in­junc­tive re­lief be­fore it was grant­ed as they claimed that PSA pres­i­dent Leroy Bap­tiste learned about it from a jour­nal­ist.

They con­tend­ed that by mak­ing the or­der, Jus­tice Seep­er­sad es­sen­tial­ly up­held Duke’s claim with­out a tri­al.

In its re­lease, the PSA stat­ed that Jus­tice Robert­son ruled that it was un­just to grant Duke the re­lief es­pe­cial­ly based on his in­abil­i­ty to re­pay the pen­sion if he even­tu­al­ly los­es his case.

“On the mat­ter of Mr Duke’s claim of fi­nan­cial hard­ship, the Court was not per­suad­ed that the PSA should bear the bur­den of his in­abil­i­ty to meet his fi­nan­cial oblig­a­tions,” it said.

“Ad­di­tion­al­ly, the Court not­ed that since Mr Duke has not yet reached re­tire­ment age, there is no im­mi­nent ap­pli­ca­tion of the rel­e­vant PSA Res­o­lu­tions that he re­lied on to sup­port his case,” it added.

It point­ed out that Jus­tice Robert­son’s de­ci­sion meant that he had to re­pay $18,875 that was paid to him af­ter he was grant­ed the in­junc­tion. He was al­so or­dered to pay the trade union’s le­gal costs for the ap­pli­ca­tion.

While it ad­mit­ted that Duke’s sub­stan­tive case is still pend­ing, the union ex­pressed con­fi­dence that it would suc­cess­ful­ly de­fend it.

It al­so not­ed that it had filed a counter-claim al­leg­ing that Duke was wrong­ly paid a $203,850 gra­tu­ity in March, last year.

In his court fil­ings, ob­tained by Guardian Me­dia, Duke’s lawyers Farai Hove-Ma­sai­sai and Chelsea Ed­wards claimed that be­fore he took charge of the union in 2009, the union’s Gen­er­al Coun­cil passed two res­o­lu­tions on pen­sions for full-time of­fi­cers un­der the tenure of for­mer PSA pres­i­dent and Labour Min­is­ter Jen­nifer Bap­tiste-Primus.

One res­o­lu­tion re­moved the age re­quire­ment for re­ceiv­ing a pen­sion mean­ing that those who served as a full-time of­fi­cer for ten con­tin­u­ous years and held a par­tic­u­lar po­si­tion for four con­tin­u­ous years were el­i­gi­ble for a pen­sion.

The oth­er sought to in­crease pen­sion ben­e­fits from 50 per cent of the last salary an of­fi­cer re­ceived to two-thirds.

Duke’s lawyers ad­mit­ted that in Sep­tem­ber 2010, the union’s Gen­er­al Coun­cil passed an­oth­er res­o­lu­tion re­scind­ing the pre­vi­ous two on the ba­sis that on­ly the union’s Con­fer­ence of Del­e­gates could have made the changes.

The Gen­er­al Coun­cil al­so passed a res­o­lu­tion to en­sure that its of­fi­cers were af­ford­ed the same re­tire­ment ben­e­fits as pub­lic ser­vants of a sim­i­lar rank and sta­tus.

Duke’s lawyers al­so not­ed a de­ci­sion by the con­fer­ence in March 2004 to ap­prove pen­sion rec­om­men­da­tions.

It was rec­om­mend­ed that pen­sions be paid when a full-time of­fi­cer turned 50 with vary­ing cal­cu­la­tions based on the time they served in the union.

Ed­wards claimed that when Duke re­signed from the union af­ter 12 years and at 45 years old in De­cem­ber 2021, it was based on the un­der­stand­ing that he would re­ceive a pen­sion based on the 2009 res­o­lu­tions.

In Sep­tem­ber 2022, Duke re­signed from his THA post af­ter a dis­agree­ment with THA Chief Sec­re­tary Far­ley Au­gus­tine over fund­ing for a group of folk per­form­ers from Rox­bor­ough, who were strand­ed on a trip to New York.

Ed­wards sug­gest­ed that the 2009 res­o­lu­tions were bind­ing as they were not sub­se­quent­ly over­turned by the con­fer­ence.

Ed­wards claimed that Duke has suf­fered se­vere fi­nan­cial con­straints by not re­ceiv­ing the pen­sion. She claimed that he had an out­stand­ing $130,000 cred­it card debt and missed pay­ments on his mort­gage.

Ed­wards point­ed out that in­sol­ven­cy pro­ceed­ings against him would mean that he would not be able to con­test the next gen­er­al elec­tion.