The Guyana Public Service Union (GPSU) has conceded that the High Court cannot grant injunctions against the State, and, as such, has withdrawn an application seeking to restrain the Permanent Secretary of the Health Ministry from making deductions from wages and salaries of employees who are absent and persistently not punctual.
By way of a Statement of Claim against the Permanent Secretary of the Health Ministry and the Attorney General, filed on June 24, the GPSU had, among other things, sought a declaration that deductions for “absenteeism and persistent unpunctuality” from the wages and salaries of the employees were unlawful, illegal, and a nullity.
According to a statement from the Attorney General’s Chambers, these deductions were made after these employees, mostly nurses attached to the Linden Hospital Complex, refused to turn up to work, and were engaged in a strike which the Health Ministry considered “illegal and premature”.
The Health Ministry had notified employees by a memorandum dated March 10 that monies would be deducted from their salaries for absenteeism and persistent unpunctuality at work.
On September 20, Attorney General Anil Nandlall, SC raised a point in limine before Justice Damone Younge, that injunctions cannot be granted against the State.
The Attorney General submitted that by Section 23 (1) of the High Court Act, the High Court is vested with powers to grant injunctions when the court finds it to be convenient.
However, Nandlall submitted that this power is circumscribed by the provisions of Section 16 of the State Liability and Proceedings Act, which prohibit 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 further 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, he pointed out that these provisions were interpreted by Chief Justice Ian Chang, SC, as he then was, who in the case of 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, Nandlall submitted that it would go against the grain and policy of Parliament to grant coercive orders against the State.
On October 13, counsel for the GPSU conceded to the State’s submissions on the point in limine and sought leave to withdraw and discontinue the application for the injunction. The said leave was granted by Justice Younge. There were no orders as to costs.
Meanwhile, the Statement of Claim seeking declaratory orders against the State is yet to be heard.