–for penalising striking Min. of Health employees

THE Guyana Public Service Union (GPSU) on Wednesday withdrew its Notice of Application (NOA) against the State for an injunction restraining the Permanent Secretary of the Ministry of Health from making deductions from the salaries of employees of the Ministry for their ‘‘Absenteeism and persistent unpunctuality.’’

On Wednesday, when the case came up again before Justice Damone Younge at the Demerara High Court, the GPSU’s attorney conceded to the State’s submissions on the “point in limine” that an injunction cannot be granted against the State.

The attorney then sought leave of the Court to withdraw and discontinue the NOA for the injunction, which application to withdraw by GPSU was granted. However, the substantive matter seeking declaratory orders against the State is yet to be heard.

On June 24, 2021, the GPSU instituted proceedings in the High Court, by way of a Statement of Claim, against the Permanent Secretary of the Ministry of Health and Attorney-General Anil Nandlall, S.C., seeking, amongst other things, a Declaration that the deductions for “Absenteeism and persistent unpunctuality” from the wages and salaries of the employees of the Ministry of Health were unlawful, illegal, and a nullity.

According to a release from the AG’s Chambers, these deductions were made after said employees, most of them nurses from the Linden Hospital Complex, refused to turn up to work, and were engaged in a strike, which the Ministry of Health considered to be ‘‘illegal and premature.’’

The ministry had, however, previously notified employees by way of a Memorandum dated March 10, 2021 that monies would be deducted from their salaries for absenteeism and persistent unpunctuality at work.

At a court hearing held on September 20, on behalf of the AG, the State raised as a “point in limine”, that injunctions cannot be granted against the State.

The State submitted that according to Section 23 (1) of the High Court Act Cap. 3:02 of the Laws of Guyana, the High Court is vested with powers to grant injunctions where the court finds it to be convenient.

However, this power is circumscribed by the provisions of Section 16 of the State Liability and Proceedings Act Cap. 6:05 of the Laws of Guyana, which prohibits the Court from granting injunctive/coercive orders against the State. Section 16(6) provides that: “Where in any proceedings against the State any relief is sought as might in proceedings between citizens be granted by way of injunction or specific performance, the Court shall not grant an order declaratory of the rights of the parties.”

Further, Section 16(8) of the said Act provides that: “The Court shall not in any civil proceedings grant any injunction, or make any order against an officer of the State, if the effect of granting the injunction or making the Order would be to give any relief against the State which would not have been obtained in proceedings against the State.”

The Attorney-General had submitted that, in essence, these provisions prohibit injunctions that are prohibitory or mandatory, and also a decree of specific performance against the State, in any proceedings.

Notably, these provisions were interpreted by the Honourable Chief Justice, Mr. Justice Ian Chang, S.C., who, in the case of the Guyana Softball Association v the Attorney-General of Guyana refused injunctive remedies sought against the State, on the basis that “there can be no rational basis for the existence of a jurisdiction or power to grant an interim or interlocutory injunction when, in the final analysis, a final injunction cannot be granted to a plaintiff.”

“Therefore, it would go against the grain and policy of Parliament to grant coercive orders against the State.
On October 13, 2021, Counsel for the Guyana Public Service Union conceded to the State’s submissions, on the point in limine, and sought leave of the Court to withdraw and discontinue the Notice of Application for the injunction, which application to withdraw by GPSU was granted,” a release from the AG’s chambers said.