Ombudsman orders Labour Tribunal to release five years of decisions

Finds lack of resources at entity 'troubling'

Ombudsman Sandy Hermiston has ordered Cayman’s Labour Tribunal to release the records of unfair dismissal decisions it has made over the last five years, following a Freedom of Information appeal.

Hermiston gave the tribunal 30 days to make the records public, according to her ruling on the appeal, which was released Thursday.

“All decisions made by the Labour Tribunal and the Labour Appeals Tribunal should be available for public review in any case, and ought not to require an FOI request for government to produce them,” she said in a statement following her decision.

The ombudsman said the FOI appeal hearing flagged some areas of concern over the way the tribunals managed their records and staffed operations.

“It is troubling to read the statements from the Department [of Labour and Pensions] and the LAT (Labour Appeals Tribunal) Secretary about the general lack of resources available for the important work of the tribunals, including their compliance with the FOI Law,” she said in her ruling.

She added that the tribunal secretary also indicated a lack of control over the Labour Appeals Tribunal’s records, including with regard to their location, which appears to be uncertain.

“This is a serious issue, since the management of all records, especially important records such as tribunal decisions, is a key prerequisite for an efficient and effective public service,” she said.

FOI appeal filed after access to records denied

The ombudsman’s ruling followed an appeal made by an applicant who was seeking records of the tribunals’ decisions dealing with unfair dismissals.

The Department of Labour and Pensions immediately disclosed 37 tribunal decisions, covering two years, which were readily available.

However, that left 141 tribunal decisions to be reviewed, scanned and redacted.

“The LAT disclosed five decisions for two full years and stated that it held an additional 47 appeal decisions for the other years. Most of these remained unredacted and about half were not in a digital format,” the ruling stated.

The applicant accepted the records for 2017 and 2018, and submitted a new request for the remaining years a few days later.

The department, in its response to the appeal, said it had expected more time to prepare all of the tribunal decisions for publication on its website.

“It called the applicant’s position unreasonable and vexatious, saying that he had ‘ignored his previous request and asked for more than what was agreed’. The department claimed that it did not need to comply with the request under section 9,” the ruling stated.

It said that it would be an unreasonable diversion of resources to provide the requested documents, given its small staff.

The department claimed, according to the ombudsman’s report, that the work time required to scan, review and redact the remaining 141 tribunal decisions, which vary in length from six to 25 pages, would require an estimated 30 minutes per decision or approximately 70 hours/10 working days.

However, Hermiston said she believed that these times were overestimated, as they are based on the assumption that all decisions would be relevant to the applicant’s requests.

“I find that both the identification of and the process of reviewing and redacting these important records would be less onerous than stated by the Department and the LAT Secretary. Consequently, I conclude that compliance with the requests would not require an unreasonable diversion of the resources of the Department of Labour and Pensions or the Ministry of Employment and Border Control,” she said in her ruling.

She added that the tribunals deal with many issues under the Labour Law and therefore not all decisions will be about unfair dismissal, as requested by the applicant.

Hermiston contended that the Department of Labour and Pensions’ approach in this case was “problematic”, since the FOI Law requires a public authority to respond to an application within 30 calendar days.

“This period cannot be extended except for good reason, under section 7(4), or potentially to defer disclosure under section 11. However, neither of these provisions was invoked. In any event, there is no basis for requiring an applicant to resubmit a request for records that were not provided in response to an initial request,” she said.

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