NOT SO FAST!

GOVERNMENT is not about to pay out the seven employees forced into early retirement in August 2015 by the state-owned Barbados Investment and Development Corporation (BIDC) without a fight.

On Wednesday, Madam Justice Jacqueline Cornelius ruled in the No.5 Supreme Court that Government must pay damages to the affected employees.
However, BIDC’s legal team, led by Michael Yearwood who is accompanied by Neil Marshall, Nicole Roachford and Monica Crichlow, have
signalled their intention to appeal the decision.

A press release issued by the BIDC yesterday, indicated that the entity has made an assessment and has already informed the Court of its intention to appeal the decision, as the Corporation does not agree with the Court’s ruling on matters pertaining to: the improper use of the discretion; the requirement to give reasons for the decision; and the existence of procedural legitimate expectation.

“The BIDC will undertake to pay the Claimants their pensions and gratuities as if they had been retired on December 31, 2015, per the Board of Decision; an action that could not have been taken while awaiting the Court’s Decision,” the release said.

The statement also read that in accordance with the Statutory Boards (Pension) Act, Cap. 384, the Court in handing down its decision, considered: The proper interpretation of Section 8(1) of the Statutory Board (Pensions) Act; the proper exercise of the discretion under Section 8 (1); and whether any legitimate expectation arose in respect of the exercise of the discretion of Section 8 (1) and the nature thereof.

The release further indicated that in relation to the Board’s right to retire, the Court found that under the applicable provisions, the BIDC was well within its legal authority to exercise its discretion under Section 8(1) to compulsorily retire officers after the age of voluntary retirement; which is 60 years old.

“The Court agreed with the BIDC that the public policy considerations mentioned were relevant, but also held the view that the particular and individual circumstances of the Claimants were also a relevant consideration. The Court therefore found that the discretion was not properly exercised.

“Related to this issue was the question of whether the Claimants were entitled to reasons for the decision of the Board. The Court found that the BIDC had no duty to give reasons and the Claimants did not exercise their statutory rights to request them.

“However, in the particular circumstances of the case, the Court felt that fairness and openness should have guided the BIDC to provide reasons to the Claimants at the earliest possible stage. The Court also found that the Claimants had a procedural legitimate expectation that the exercise of such a discretion would have been subject to consultation with them or their representative (s),” the release stated.

Therefore the Court ruled that although the BIDC had a right to exercise its discretion under Section 8 (1), there was insufficient consultation and this entitled the Claimants to an award of damages. Submissions in relation to damages are to be filed within 28 days of the date of the Court’s decision. (AH)