THREE APPEAL Court judges have upheld a challenge by the North Central Regional Health Authority (NCRHA) which asked for a stay of an order of the Industrial Court relating to one of its managers.
On Thursday, Justices of Appeal Prakash Moosai, Gillian Lucky, and James Aboud said the correct forum to resolve the issue of whether the Industrial Court was correct not to refer the manager’s classification to the Registration, Recognition, and Certification Board.
The authority had sought to have the Industrial Court refer to the question of whether Elroy Julien was classified as a “worker” under the Industrial Relations Act relative to a trade dispute the National Union for Government and Federated Workers filed on his behalf.
It is the NCRHA’s contention that Julien was not a “worker” as he was a manager of the authority’s quality service department on secondment to the National Commission for Self Help as its chief executive officer.
As a result, the NCRHA argued that his trade dispute before the Industrial Court was an abuse. It asked that the question of Julien’s classification be sent to the RRCB for determination.
In the trade dispute, the NUGFW challenged the authority’s failure to confirm Julien in the position of general manager of quality risk management. The union sought an injunction in the Industrial Court which was granted and continued in March.
Other than rejecting the NCRHA’s application for a stay, the authority was ordered by that court to appoint Julien to act in the position of general manager on his return from secondment until the trade dispute was determined.
The NCRHA appealed to a single judge of the Appeal Court asking for the stay of the order to appoint Julien as general manager but this was dismissed.
At the appeal, the authority’s attorney Farai Hove Masaisai argued the single judge was wrong to find that a stay would be prejudicial to Julien since the NCRHA did not ask for the entire claim to be put on hold. In fact, was the NCRHA’s contention that the interim order would be prejudicial to the entire health care system since it would result in someone who never applied for or acted in the role of general manager performing those duties. It also argued that he would gain an unfair advantage over those who did apply for the general manager position.
It also argued that if the authority was successful at the dispute then it would face hardship in seeking to recover the extra salary paid to him as general manager and appointing someone in a higher position by way of an injunction would have a serious impact on the NCRHA’s budget for the financial year as the pay for the higher position was double that of a manager.
In their ruling, the Appeal Court pointed to the numerous undertakings the NCRHA was willing to allow him to stay in the position of manager of the quality service department and pay whatever arrears of salaries would be due to him if he is successful with his substantive dispute as well as not to fill the position of general manager until the matter was res
