Outdated Staff Orders - Freedom of expression and public employees

Matondo Mukulu, Guest Columnist

Several months ago, as Jamaicans we rightly congratulated the Government for having taken the decision to effect the much-needed amendment to Chapter III of the Jamaica (Constitution) Order in Council 1962. This step ushered in the Charter of Rights.

Many lines were expended or committed to extolling its many virtues and how it would radically alter our landscape. You got a clear sense that we were moving to the promised land of liberty and all those rights which give true meaning to the expression 'freedom'.

Recent comments by the president of the Pharmaceutical Society of Jamaica, and the impact that this has had on her employment, in my view, invite us to consider how her rights under the charter will or should square off. This is a matter that is of wider public interest.

I was drawn into a discussion on Valerie Germain's reported suspension from her role as a pharmacist in the public service, an employee who dared to mention that the State (her employer) was in breach of Section 18 of the Pharmacy Act 1975. In essence, Section 18 (1) of the Act prohibits the dispensing or sale of drugs or poisons, from places which are not pharmacies and, importantly, there shall be no dispensing or sale of such items, where there does not exist a registered pharmacist or a pharmaceutical student.

There are established exceptions to this general rule, which can be found at Section 19 of the Pharmacy Act but, for the purpose of our discussion, these are not relevant, and I note from the various reports that the employee does not rely on the exceptions.

Of course, as members of the public, we are not privy to the content of her employment contract but, as members of the society, we should pay close attention to this issue, as it will be one of the barometers of whether we are ready for the consequences of the Charter of Rights.

Further, this issue does raise the matter of the position of sections of the relevant Staff Orders in view of the provisions of the Charter of Rights.

But we must equally remind ourselves of the fact that the affected employee was not only suspended, her pay has been reduced pending the outcome of an investigation and possible hearing.

Freedom of expression

Section 13(3)(b) confers the right to freedom of expression and Subsection (3)(e) does give the right to associate freely with persons or a group of ones choice. Of course, this is not new in our employment sector, as the union movement has been with us since our ancestors set fire to the cane fields in the 1930s.

Another important provision of Section 13, and which has been part of our legal rights before the amendments to the Constitution, is that of a right to a fair hearing. We have come to understand this right as meaning, among other things, that an individual should not face any type of punishment or detriment, before there has been a finding of a breach or culpability.

However, public-sector employees, including police officers under investigation, have routinely been subjected to reduced salaries, a fact which causes hardship which is further worsened by the fact that some of our investigations take a mighty long time, sometimes years.

Staff Orders 2004

I imagine that, at some future hearing, Ms Germain will be invited by her employer (The Jamaican Government), via the Services Commission, to have a look at the Staff Orders for the Civil Service 2004, in particular the section dealing with communication with the media. Article 4 makes it clear that all communication with the media from the department must be approved by either the permanent secretary or the relevant head of department. It further goes on to to say that any material, statement, documentation or other form of communication for publication in any media must be approved by the permanent secretary/head of department or other authorised personnel.

Subject to the provision of the Access to Information Act, employees must obtain written approval and clearance from the appropriate authority to make public or communicate with the media or to any private individual, organisation or entity any documents, papers or information, not in the public domain which may come into the employee's possession in an official or unofficial capacity.

Relevant to this discussion is the fact that Article 10.7 of the Staff orders does allow a person to be placed on suspension and have their salary reduced, pending an investigation into the allegations raised.

The facts, in my view, engage Section 13 (3) (b) and (c), which guarantee a right to freedom of expression and also association, respectively. In this regard, the Government must recall that Ms Germain was speaking in her capacity of president of a recognised body. This is an important aspect of her response and she would be on firm legal ground. However, I would go much further and say, even if she were not speaking in her capacity as president of a recognised body, she certainly could look to the charter for support.

In that, on any reading of the charter, it tells us that the only limitations that can be imposed on one's freedom of expression are those which "may demonstrably justified in a free and democratic society" and the State must not take any action which infringes the rights conferred by the charter (See Section 13(2) (b)).

While we accept that this is an employment relationship, the progressive interpretation of the law, certainly in the last 10 years, has shown that the type of restriction placed on employees in relation to the media, as outlined in the Staff Orders, is now ripe for review if we want to see them survive a post-Charter of Rights era.

What comes to mind is the discussion that was had in the case of Bennett v Greater Manchester Fire and Rescue Authority, where the Employment Tribunal in England came to the conclusion that the public body, in dismissing the firefighter because he had sent emails to a large number of colleagues about the replacement of beds with chairs for resting firefighters on night shifts, had acted in contravention of his right to freedom of expression.

This is a decision which is not so much limited to its facts and it should serve as an opportunity for the Government to think through how, in fact, it realigns its Staff Orders. Make no mistake about it, the Charter of Rights will compel us to make some necessary changes, as we embrace a more progressive reality.

Protected disclosure

The discussion on Ms Germain takes on a wider dimension, when we note that the disclosure that she made was one which alerted us to the fact that the State was acting in contravention of the law. Of course, we await more information but, be that as it may, it would appear to me that if Ms Germain uses freedom of expression, she would be in good territory, as she can remind the Government of its positive duty to take steps to protect her right under the Constitution.

In this regard, I note that to date, despite numerous announcements, this Government has failed to publish in the Gazette, a date for the coming into force of the Protected Disclosure Act 2010, which was designed for such instances as we are not faced with. The bill, according to the website of the Jamaican Parliament, received the royal assent on March 8, 2011, but a date is yet to be confirmed as to its commencement.

This, in my view, is a clear breach of the right to freedom of expression, as legislation such as the Protected Disclosure Act helps to create an environment within which the right to freedom of expression is protected. But more to the point, it helps to ensure that the State does not act beyond its powers or contrary to the law.

Just pause for a second and consider how the Ministry of Transport and Works could have benefited from this legislation, if this Government had the steel to get a commencement date for the legislation that is designed to enhance the State's positive obligation to protect free expression.

Interdictions

Finally, I cannot leave this discussion without sounding an alarm on the matter of what happens, according to the Staff Orders (Article 10.7), when a person is placed on interdiction. The Staff Orders instruct that if an alleged breach is regarded as serious, not only can the person be placed on suspension, but that individual can have his or her salary reduced or stopped. Of course, I can appreciate the function of having a person removed through suspension, while an investigation is taking place, but I cannot help wondering, like most progressive thinkers, why reduce or stop Ms Germain's salary, when all we have is an allegation.

This course of action, which has the backing of the orders, is an affront to our understanding of fairness and potentially breaches Section 16(2) of the Charter of Rights in that an individual against whom an allegation has been made, being entitled to have those allegations investigated and heard at a disciplinary hearing or in a Court, should not have the inconvenience of a reduction in income. This can impair the person's ability to marshal sufficient resources to prepare for and respond to an allegation.

In this regard, I am encouraging the Cabinet secretary to call in the human-resource and legal experts, as this practice of cutting people's salaries during a period of interdiction is not sustainable and will not survive a vigorous and sustained progressive challenge.

Whatever we might think of Ms Germain's action, we should resist our illiberal tendencies and ignore the partisan urges, as we must support not Ms Germain, but the principles that we wish to be applied to us, when our own time comes. The Staff Order is important and it is, needed, but new thinking must be applied to produce a document that balances the right of the individual against the potential might and secrecy of the State.

Matondo Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.