MUSINGS: Enjoining a dismissal

Wonderful to relate, or “mirabile dictu”, as my two Latin masters of long ago, Messrs. Wellington and [CQ] Williams, would have preferred, I do not find it necessary today to resume my analysis of the Trump presidency; a phenomenon that seems anyway to be imploding towards self-destruction. Moreover, there is sufficient drama being played out in our own front-house to provide adequate fodder for the hebdomadal columnist.

The coup de théâtre of the week has been the denouement of Barbados’s seemingly intractable economic woes being played out in the courts, where the Governor of the Central Bank, Dr DeLisle Worrell, is resisting the attempt of the Minister of Finance to dismiss him from office. To the time of writing, Dr Worrell has managed to secure two injunctions to retain the office; one, by an interlocutory ex parte application last weekend when Worrell J would have enjoined the Minister not to act further on his alleged mandate to Dr Worrell to “resign or be dismissed”, and the other at yesterday’s vacation of that order so as to permit recourse to the local Court of Appeal.

Not having had access to the texts of any of the decisions in the matter so far, I propose to reserve detailed comment until after the judgment of the Court of Appeal, but for those who are querying the appropriateness of injunctive relief in a matter of this nature, the law’s attitude appears to be evolving. Time was when the law set its face firmly against the grant of specific relief to restrain an alleged wrongful dismissal at common law. The several bases of this stance were first, that damages for the dismissal would ordinarily constitute an adequate remedy in the circumstances; second, that the court would be unable to supervise the performance of the contract if it were allowed to continue; third, the substantial potential for oppression, of the employee especially, if he or she is required to maintain a contract involving the supply of personal services and fourth, the need for the parties to maintain the metwand of any contract of service; mutual trust and confidence. Otherwise the order would have no purpose and, according to a celebrated maxim, “Equity (the Law) does nothing in vain”.

However, in recent times, perhaps owed largely to the advent of the concept of unfair dismissal that has at its base the notion of re-employment (reinstatement or re-engagement) as a remedy, the courts have become much bolder or less reluctant in granting specific remedies against employers, most commonly though where the employee is entitled to the benefit of a contractual procedure such as a hearing, where there is no lack of confidence in the employee by the employer, or even, more controversially, where no good reason for the termination has been established by the employer.

I am of course, not privy as to precisely which, if any, of these considerations influenced the judicial decision to enjoin the Governor’s dismissal nor am I aware whether the determination of who indeed was Mr Worrell’s employer entered into the entire debate. This resolution is critical to ascertaining whether or not he is entitled to protection against an unfair dismissal, since the Employment Rights Act, by virtue of section 51, does not bind the Crown or apply to its employees but does to statutory corporations such as the Central Bank.

What is even more serendipitous is that last year I penned a piece in another space in this newspaper that took as its point of departure the dismissal of Dr Worrell’s counterpart in Trinidad & Tobago by the then incoming Rowley administration. Although court action was threatened in that case as well, I am not aware that it did in fact eventuate. In that effort, I also attempted a comparative analysis of the security of tenure of the local Governor and other officials similarly situated. I wrote then:

“It is notorious and understandable, at least in this region, for Opposition parties to be sometimes harshly critical of the various announcements and prognoses of those Central Bank Governors who have been appointed by the other side. Equally, it is understandable that a governing administration, as the economic policymaker for the State, should command the sympathy and goodwill, if not loyalty, of the head of the nation’s Central Bank. The question that begs asking, however, is whether a Central Bank Governor is truly independent or is it that he or she is merely a creature of the Cabinet and Minister of Finance both in the legal and natural senses of that concept? The answer would appear to lie partly in the security of tenure accorded to that official.

Certainly, few regional Governors would be as sycophantic in their roles as Mr. Gideon Gono, the Governor of the Central Bank of Zimbabwe from 2003 until 2013, who eschewed any claim to independence and saw it rather as a cardinal principle that his policies at the Bank were always consistent with those of President Mugabe. He attributed this to his self-perception as a mere disciple, for whom a key quality was loyalty to his leader.

Similarly, few would lay claim to the awesome autonomy of the Chairman of the US Federal Reserve Board, an entity whose monetary policy decisions do not have to be approved by the President or anyone else in the executive or legislative branches; which does not receive funding from the public purse; and whose members’ tenures span multiple presidential and congressional terms.

Unlike the Trinidad & Tobago legislation, the Barbados Central Bank Act does not provide specifically for the manner of termination of the appointment of the Governor, leaving such matters to be as set out in his or her instrument of appointment, although there is, of course, local precedent in the dismissal of Governor Winston Cox some years ago.

It bears remarking that this was written at a time when the employment relation between the Governor and the Minister was as amicable as could be, an observation ironically made by the Trinidad Guardian in a column published last week Thursday under the caption, “Is Barbados insolvent?” and written by Anthony Wilson.

Alluding to the fact that the current contretemps has caught many people in T& T and throughout the region by surprise, the author reasons:

“That’s because anyone who has seen the two men interact at the several investor forums that Barbados has held in Port of Spain, and elsewhere, over the past few years would have come away with the impression they had a close working relationship based on mutual respect, complete policy alignment and the need for them to work together to further their country’s national interest…”

I suppose, as the lady is alleged to have winkingly told the verger in an entirely different context, “Even the best of friends must part”.