Police heading to Appeal Court after partial victory against Gov’t
THE Jamaica Police Federation says it will be heading to the Appeal Court, and the Privy Council if necessary, to get all the remedies it originally sought in a suit it brought against the Government and in which it received a partial victory on Friday.
The federation, in 2020, sued the Government for failure to keep its side of a bargain under several heads of agreements, for five contract periods dating back to 2008, to establish a 40-hour work week and pay overtime for hours in excess. It was also agreed that a system capable of capturing those additional hours would be designed and/or acquired no later than March 31, 2010.
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It was agreed that in the interim, and until the system was in place, all rank and file members of the federation would receive pay for an additional 10 hours worked, whether or not they worked overtime. However, no new system has been established, according to court documents, but the payments for the additional 10 hours, whether or not the hours were worked, have continued to date.
The federation contended that its members are contractually entitled to have the system established and sought compensation, retroactively computed from 2008, for overtime worked in the period and also sought declarations and orders as well as damages.
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On Friday the Constitutional Court, in a ruling on the matter, declared that the heads of agreement entered between the federation and the Ministry of Finance for the contract periods April 2008 to March 2010, April 2015 to March 2017, and April 2018 to March 2019 are binding on the Government. It said those heads of agreement “constitute binding contracts between the parties and created a legitimate expectation among the members of the force”.
The court ordered that the defendants should, before March 3, 2023, put in place a system in accordance with the terms agreed and which will capture the actual hours worked by JCF members in excess of 40 hours per week, and that the members should “thereafter be remunerated accordingly for such excess hours”.
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According to the court, unchallenged evidence revealed that the existing manual recording system for the police force remained unreliable due to “integrity issues”.
The court further ruled that costs to the claimants against the defendants are to be taxed or agreed.
However, on the issue of whether the claimants were entitled to damages, the court said the agreed 10-hour overtime payment accepted until the system was put in place represents agreed liquidated damages.
Speaking with the Jamaica Observer following the ruling, Federation Chairman Corporal Rohan James acknowledged the court’s order that the Government should pay the federation’s legal costs but said, “in terms of the other aspects of it we are going to have to go to the Appeal Court for it [retroactive monies], because if the court can acknowledge that the Government is in breach from 2008 regarding the heads of agreement signed then it stands to reason those salaries are properties”.
Added James: “We are going after damages because if you owe me, you have to pay me because salaries are property. And if you rob me of my property it must mean that since there is a legitimate expectation, I must pursue that aspect of it. I want every cent the Government owes us… it is close to $40 billion, give and take it can be more or less,” James told the Observer, adding “we will definitely be appealing aspects of this judgment and if it means going to the Privy Council, we are prepared to do so.”
He said the federation will be meeting with its attorneys next week.
“We will be moving forward; there will be no delays. We are not playing around here,” James said.
Asked if he was happy about the ruling, he said, “At least it is a vindication to say our employers continue to abuse the rank and file membership, even though we have acceded at every given stage and sought to give service to every citizen of this country. Those who are legislators have abrogated their oath of office to ensure that our rights as citizens and workers are protected, and that is what the landmark ruling is today — our lawmakers are lawbreakers.”
On Friday lead attorney for the federation, Jacqueline Samuels Brown, QC, addressing the court after the ruling, said, “We have taken note of your Lordship’s ruling and the orders made and I will have to discuss it further with my clients. But, we are grateful that at least one stage of the proceedings has come to an end which is that it was not until this application — which was filed in 2020 — came before the court that we had the assurance that the financing for the system was now in place to compensate police officers in accordance with the contractual obligations of the Government.”
“That is the value of our courts, because very often it is not until a matter reaches litigation and the court becomes vested with the matter that issues are resolved. We are indeed grateful. I am sure my clients would wish me to say that they took it for granted that the contractual obligation, which the Government committed to, was on the basis of an assurance that the finances were available and the system could be put in place expeditiously. But nevertheless, they were more influenced by their sense of duty to the country and they put themselves on the back burner; but we are trying to ensure that the balance is kept in terms of their duty to the society and the Government’s obligation to them,” she added.
Head of the Police Officers’ Association, Senior Superintendent of Police Wayne Cameron, in an initial response to the ruling, told the Observer, “I think we are headed in the right direction because from day one we did indicate that we are in support of our junior members getting their overtime payments, and so the construct of the ruling is another matter for discussion.”
