DER can’t ignore complaints

A Grand Court judge’s ruling will allow employees of Cayman Islands statutory authorities and government-run companies the right to make work-related complaints in much the same manner as their counterparts in the civil service.

The only difference is the entity they must complain to.

The issue arose earlier this year when two ex-employees of the Health Services Authority said both the Department of Employment Relations and the Civil Service Appeals Commission had refused to hear their cases. The workers told Complaints Commissioner John Epp the decisions by those agencies had left them with no way to seek redress for their problems.

One of the employees had filed a wrongful termination complaint. Mr. Epp refused to discuss the details of the other’s case. The DER had previously handled complaints made by hospital employees since 2002 when the HSA separated its operations from central government.

In July 2006, due to changes in the Cayman Islands Public Service Management Law, the then-director of employment relations, after seeking legal advice, had ruled that HSA staffers and other statutory authority workers could no longer take their complaints to the DER.

Former DER Acting Director Philip Scott said that the Legal Department’s position at the time was the Labour Law did not apply to employees of the HSA.

‘If the Acting Director of Employment Relations is correct in his current view of the Labour Law, employees of the HSA (and other statutory authorities) with employment-related grievances have nowhere to turn,’ Justice Alexander Henderson wrote in his ruling on the matter.

The Complaints Commissioner went before the court in August to determine whether his office needed to take up the claims of these two HSA workers, and others, who had ‘fallen between the cracks.’ Justice Henderson said the commissioner had no authority in the matter because the work-related complaints of those HSA employees should still come before the Department of Employment Relations.

‘The Office of the Complaints Commissioner is a place of last resort,’ Mr. Epp said. ‘Residents must first try remedies available to them within the internal complaints processes of each government entity before the OCC can investigate the entity.’

The ruling could have a wide-ranging effect since it’s believed more than 1,000 people work in Cayman Islands statutory authorities and government companies. Mr. Epp said his office knows of at least three other cases where individuals have employment complaints against other statutory authorities which have not been heard by DER.

Justice Henderson stated in his ruling that there was no apparent intention on the part of the legislature to exclude HSA employees, or any others who work with statutory authorities or government companies their right of appeal under the Labour Law.

‘It has always been open to the Legislative Assembly to define the phrase ‘public service’ in the Labour Law so as to exclude employees of statutory authorities,’ Mr. Henderson wrote. ‘It has not done so. Unless and until such a definition is enacted, the phrase should be construed in a manner consonant with the existing rights of HSA employees.’