Fri, 05/27/2016 - 12:00am
The teacher’s lot, not a happy one
The policeman’s lot, the opera composers, Gilbert and Sullivan, assure us in their production, The “Pirates of Penzance”, is “not a happy one”. Members of the Barbados Union of Teachers [BUT], after their travails in recent weeks, might wish to argue that teachers face a similar unhappy predicament. The clincher to this proposition would have come with the recent notification from officials in their parent ministry, Ministry of Education to the Secretary-Treasurers of the respective Boards of Management of those schools to which members of the BUT are attached, that the salaries of those teachers who attended, without permission, meetings of the Union convened in late April and early May, should be proportionately abated for the month of May 2016. The letter claims also that this notification is in accordance with section 3. 3. 2. of the General Orders of Barbados. (sic).
This measure raises an intriguing point of law, one that has not been the subject matter of a local trial to our best knowledge. And, according to the BUT, it had already sought and obtained legal advice on the matter, which satisfied it that the Ministry “did not have a leg to stand on”. In spite of this, we have serious reservations as to whether there will indeed be court action, given the express words of the president of the BUT, Mr. Pedro Shepherd, that they were quite willing to pursue the matter up to the level of the Congress of Trade Unions and Staff associations of Barbados [CTUSAB] and the Social Partnership, although he did add that the BUT would take the matter “as far as necessary”, if the letter was not withdrawn.
That an employer legally has the right to withhold the wages of an employee for the period that the employee is not ready and willing to work is not in dispute. And while the letter, now in the public domain, referred to a part of the General Orders, a near identical provision has been enacted in paragraph 15 (1) of the Second Schedule (the Code of Conduct and Ethics), to the Public Service Act 2007 (as amended).
According to this: “Officers who are absent from duty without permission, except in the opinion of the Permanent Secretary or Head of Department the absence is due to illness or other unavoidable circumstances, are in breach of this Code, and their pay may be reduced appropriately by the Permanent Secretary or Head of Department to take account of such absence.”
This entitlement of the employer is also reinforced by case law. The BUT’s response to this is that provisions in the Constitution and the Trade Unions Act allow for the holding of these meetings although we understand that any such attendance would be permitted only if permission had been granted or unreasonably withheld in response to an application for leave to do so.
In any event, Mr. Shepherd argues, at least 99 per cent of those attending would have been granted permission by their principals or those in charge of the school.
This appears to us to be the crux of the issue for now. Whether permission was granted or not may easily be established on the evidence. So long as it was granted, there should be no abatement of salaries. The official letter concedes as much.
We envisage a further dispute, however, in respect of the assessment of the proportionate abatement where this is justified. Does a teacher’s salary accrue by the minute, the hour or by the day? What if he or she attends school for the greater part of the day, not having been previously warned that part performance would be unacceptable.