PSA seeks to hold NALIS in contempt for failing to reinstate worker

Derek Achong

The Pub­lic Ser­vices As­so­ci­a­tion (PSA) is seek­ing to have the Na­tion­al Li­brary In­for­ma­tion Sys­tem (NALIS) held in con­tempt of court over its fail­ure to re­in­state a work­er af­ter be­ing or­dered to do so by the In­dus­tri­al Court.

The trade union brought the con­tempt ap­pli­ca­tion last week as it sought to have NALIS’s ap­peal over the In­dus­tri­al Court’s de­ci­sion struck out.

The ap­pli­ca­tion cur­rent­ly be­fore the Court of Ap­peal re­lates to le­gal ac­tion tak­en by the PSA on Ryan Mar­tinez’s be­half af­ter he was ter­mi­nat­ed in Sep­tem­ber 2016.

Mar­tinez joined the pub­lic ser­vice in Oc­to­ber 1997 and was trans­ferred to NALIS in 2002. In 2013, he was pro­mot­ed to Li­brary As­sis­tant II.

In 2017, the PSA filed a trade dis­pute chal­leng­ing Mar­tinez’s fir­ing.

On Ju­ly 27, three In­dus­tri­al Court judges or­dered that Mar­tinez be re­in­stat­ed and di­rect­ed that he be paid the salary and ben­e­fits he would have re­ceived had he not been ter­mi­nat­ed.

The pan­el found that NALIS had failed to prove that Mar­tinez had com­mit­ted acts of gross mis­con­duct and ruled that the be­hav­iour for which he was ter­mi­nat­ed amount­ed to “in­tem­per­ate ex­pres­sions of frus­tra­tion” over an un­re­solved salary is­sue.

The judges al­so found that the dis­ci­pli­nary process used to fire Mar­tinez was pro­ce­du­ral­ly de­fec­tive and the out­come was dis­pro­por­tion­ate.

NALIS ap­pealed but did not ini­tial­ly ob­tain a stay of the rul­ing from the In­dus­tri­al Court or the Court of Ap­peal.

In late Au­gust, the PSA’s lawyer Richard Jag­gasar wrote sev­er­al let­ters to NALIS and its lawyer re­quest­ing that arrange­ments be put in place for Mar­tinez to re­turn to work.

Mar­tinez re­port­ed­ly re­port­ed for du­ty on Sep­tem­ber 1 but was al­leged­ly stopped from work­ing.

NALIS’s cor­po­rate sec­re­tary Brah­ma Be­har­rysingh wrote to Jag­gasar claim­ing that it (NALIS) sought a stay from the In­dus­tri­al Court and was wrong­ful­ly blocked from mak­ing sub­mis­sions on the re­in­state­ment or­der.

In the con­tempt ap­pli­ca­tion, Jag­gasar sug­gest­ed that NALIS’s lawyers were to blame for non-com­pli­ance with the or­der and sug­gest­ed that they (the lawyers) did not prop­er­ly in­form NALIS of what tran­spired in the le­gal pro­ceed­ings and the out­come.

“It is ap­par­ent that the ac­tors guilty of non-com­pli­ance are the at­tor­neys-at-law in­volved in the case,” Jag­gasar said.

He sug­gest­ed that there is a con­tin­u­ing fail­ure to give ef­fect to the or­der each day that Mar­tinez re­mains un­re­in­stat­ed.

“The Court is there­fore in­vit­ed to treat this ap­pli­ca­tion not mere­ly as an ap­pli­ca­tion con­cern­ing a his­tor­i­cal de­fault but as an ur­gent ap­pli­ca­tion to bring con­tin­u­ing non-com­pli­ance to an im­me­di­ate end,” Jag­gasar said.

“The ap­pro­pri­ate re­sponse is to re­quire im­me­di­ate com­pli­ance and, if nec­es­sary, to im­pose a sanc­tion suf­fi­cient to se­cure obe­di­ence,” he added.

In the par­al­lel ap­pli­ca­tion to strike out the ap­peal, Jag­gasar claimed that NALIS had not raised any valid grounds ca­pa­ble of over­turn­ing the In­dus­tri­al Court’s rul­ing. He claimed that NALIS was seek­ing to chal­lenge the pan­el’s fac­tu­al find­ings in­stead of rais­ing is­sues of law.

“The In­dus­tri­al Court heard the ev­i­dence of the par­ties’ wit­ness­es, con­sid­ered the doc­u­men­tary ex­hibits, heard the at­tor­neys for both par­ties and de­liv­ered a rea­soned judg­ment iden­ti­fy­ing both sub­stan­tive and pro­ce­dur­al de­fi­cien­cies in the dis­ci­pli­nary process,” Jag­gasar said.