THE Court of Appeal has upheld a High Court’s ruling on former Public Services Association (PSA) Watson Duke’s legal battle with the union over pension benefits.
In a ruling on January 7, Justices of Appeal Vasheist Kokaram and Eleanor Donaldson-Honeywell upheld the findings of Justice Marissa Robertson in an application filed by the PSA to have Duke’s notice of application set aside.
In its ruling, the Appeal Court held that Robertson was only “plainly wrong in part,” as it related to an interim payment of $18,875 Duke received in a previous order by another judge. The Appeal Court set aside this aspect of Robertson’s ruling.
Donaldson-Honeywell, who wrote the Appeal Court's ruling, found the trial judge's “overall decision on the balance of justice was not plainly wrong.”
“Overall, the trial judge’s finding that, on a balance of justice, the respondent would suffer some irremediable financial harm should the injunction be granted was not plainly wrong.
>
“This was so in that the appellant would be unlikely to repay sums awarded.
“Additionally, the judge correctly weighed this in balance with the fact that the appellant’s chance of success in proving the merits of his case is not at the level of strength required for an interim payment order.
“In other words, he did not satisfy the court that he had the stronger case that he would obtain judgment for a substantial sum or costs.”
Duke filed a lawsuit against the PSA in June 2024, contending that the union breached his employment contract by failing to pay his allegedly legitimate pension after he resigned from the post in December 2021 to fulfil his short-lived role as Tobago House of Assembly (THA) deputy chief secretary.
Duke sought an injunction as he claimed that he was suffering extreme financial hardship including missing mortgage payments and accumulating a $130,000 credit card debt.
Justice Frank Seepersad granted the injunction and made the ex-parte order on June 28.
On August 30, Robertson reversed Seepersad’s order after the PSA’s attorneys applied to have it set aside.
Duke contended that he was entitled to pension payments based on PSA resolutions, claiming entitlement to two-thirds of his final salary without age restrictions. Duke contended that prior general council resolutions created a vested right for pensions, irrespective of age and that their rescission was unlawful.
The Appeal Court found the PSA’s interpretation of the resolutions, requiring officers to reach a retirement age, to have greater relative strength.
>
“Without this court making any determination on the merits of the issue raised by the parties, it was open to the trial judge to hold that the respondent’s case that resolutions A and B did not remove the need to reach retirement age before entitlement to pension is of greater relative strength.
“This finding was not plainly wrong because, based on all the evidence available to the judge as well as on a plain reading of the relevant resolutions, there was no plain interpretation or clear precedent for the appellant’s case.
“On the other hand, the respondent’s case highlighted the lack of inherent logic in the appellant’s case that there was no applicable retirement age.”
The Appeal Court also upheld the judge’s findings on Duke’s claim of entitlement to a pension based on the alleged promise.
“This is so because the appellant’s role in trying to rescind resolutions A and B belies his case that he was relying on the said resolutions to his detriment.
“Even if he were relying on the resolutions as though they were promises, his case that they had the effect of eliminating the existence of any retirement age is less likely to succeed than the respondent’s case.”
Donaldson-Honeywell also referred to inconsistencies in Duke’s arguments, noting that the alleged promises made to him after his resignation in 2021, were not established as a strong case at this stage.
Since the PSA was largely successful in defending the dismissal of Duke’s claim, the Appeal Court ruled that it should be entitled to a greater portion of the costs of the appeal at 75 per cent.
Douglas Mendes, SC, and Kelvin Ramkissoon represent the PSA while Farai Hove Masaisai and Chelsea Edwards represent Duke.
>
