Ombudsman finds ‘serious issues’ with LT records

| 13/08/2020 | 49 Comments

(CNS): Claims by the Department of Labour and Pensions that it wasn’t sure where some records were in response to a freedom of information request was “a serious issue”, Ombudsman Sandy Hermiston said in her latest appeal decision. Hermiston has ordered the DLP to release dozens of records dating back to 2014, which it had originally refused to do on the grounds that it was too hard and the department was under resourced.

The DLP information manager had refused an FOI request for documents relating to unfair dismissal hearings by both the Labor Tribunal (LT) and the Labour Appeals Tribunal (LAT) because it “would require an unreasonable diversion of resources”, a decision that was supported by the chief officer of the Ministry of Employment and Border Control.

But the ombudsman disagreed and directed the ministry to disclose the requested records by 11 September.

In her decision Hermiston raised concerns about record keeping and the lack of resources at the labour tribunals that led to the refusal.

“It is troubling to read the statements from the Department and the LAT Secretary about the general lack of resources available for the important work of the Tribunals, including their compliance with the FOI Law,” the Ombudsman wrote. “The LAT Secretary also indicated a lack of control over the LAT’s records, including with regard to their location, which appears to be uncertain. This is a serious issue, since the management of all records, especially important records such as tribunal decisions, is a key prerequisite for an efficient and effective public service.”

Hermiston pointed out that the law does not allow a lack of control over
requested records to be included in an authority’s claims that it would be unreasonable to use their resources searching for, locating or collating a record.

She also disagreed with the time estimates and work required to deal with the request in full.

The FOI was made by a local lawyer who had originally sought the documents to help him with a case, given the lack of case law regarding wrongful dismissal claims here. He did not receive the documents in time to help with that case but he continued to pursue an FOI request, arguing that these documents should be in the public domain.

He asked for all decisions relating to unfair dismissal that have been handed down by the LT and LAT in the last 5 years (2015-2019) but only received records for 2017 and 2018. These records had previously been reviewed and were readily available.

The department said it would continue to review records dated 2015, 2016 and 2019 for publication on its website, and asked the applicant to resubmit his request for the rest at a later date.

The FOI law does not provide for the authority to do such a thing, but when he did so, more than a week later the new request was denied on the basis that it was vexatious and a substantially similar request from the same person, as well as being an unreasonable diversion of resources.

Not surprisingly, the lawyer requested an internal review, which the chief officer upheld. It was not until the case went before the ombudsman that the first two reasons were dropped but the ministry continued to deny the request, citing the level of work it would take as the department was at 50% capacity and struggling to cope.

Having reviewed their claims, however, Hermiston sided with the applicant and ordered the disclosure.

This decision comes more than two months after the ombudsman upheld a complaint by a resident who waited more than six months to have his employer’s appeal heard before the Labour Appeals Tribunal, which led to Hermiston’s team discovering nearly a dozen such appeal cases that have been delayed outside statutory timelines.

“To delay justice is an injustice,” said Hermiston in that case. “It is simply not fair to make workers or companies wait so long for a hearing. It defeats the original purpose of the tribunal.”

During that case problems with staff were also blamed for the delays and the ombudsman recommended that the LAT be staffed properly to ensure such a backlog does not occur again.

DLP Director Bennard Ebanks said the staffing challenges identified would be addressed.

See the full decision in the CNS Library

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Category: Government oversight, Politics

Comments (49)

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  1. Anonymous says:

    Director Bennard must go! hes not like the previous director Mario… at least things were getting done!

    • Anonymous says:

      Lolz. What did he do? He was the director in 2014 when the records mess was happening. He made this and other mess and ran off and left it for someone else to clean up.

  2. Anonymous says:

    Bennard the director nice guy but seriously he took the dept over 3-4 years ago and what has he really done? other than continuously complain about staffing! he needs to adjust with what he has… Have seen no real accomplishments by the dept of Labour other than keeping seats warm!

  3. Anonymous says:

    Aldens performance as Minister of Labour is “woeful “

  4. Anonymous says:

    She will be gone soon, calling out to many caymanians. This is an embarrassment to our country

  5. Anonymous says:

    World Class bobo!!

    Wha u say Franz??!!

  6. Anonymous says:

    All attention today must be on the trial of the year. If it is again pushed back, then mafia, not law rules in Cayman. With being paid 250K per year he could be laughing for years.

    • Anonymous says:

      so there it goes …it has been how long already? 5 months?
      He will have collected $180K+ by December laughing all the way to his bank.

      • Anonymous says:

        It really is excellent work if you can get it, and you can stand being hated by everyone. I would do it if I could handle that last part.

  7. Anonymous says:

    As you walk into Labour and Pension Dept. you know you are wasting your time.

    The whole department should be fired, they are so useless.

    They actually discourage people from using their rights because they tell you it will take over 12 months to get a ruling in court.

    Understaffed with so many unemployed!! Rubbish!!

    They knowingly allow companies to keep breaking the law and look the other way once a check can be cut prior to going to court. Companies never get fined for breaking the law.

    • Anonymous says:

      Have only had to deal with the labour part of this office and they are as useful as 2 teats on a boar hog. The woman that oversees this area has zero empathy and has a personality of a an ant. And yes, took my matter 9 months to reach tribunal.

      • Anonymous says:

        Lucky you were allowed to stay on Island to fight. Imagine what has happened to the hundreds of expats who have filed complaints and been kicked off the island – with their files then disappearing and no action being pursued.

  8. Anonymous says:

    another glorious day for the ‘world class’ civil service…..zzzzzz.
    a civil service that will never be reduced or reformed….pure wonderland stuff.

  9. Anonymous says:

    The Cayman government is usually 20 years behind the times in most areas. You should see how immigration keeps your records…blue folders stacked against walls, many falling apart and anyone in the department can just give any file they want a little perusal and then slip info to anyone they want. It’s a joke.

    • Anonymous says:

      This is absolutely untrue.

      • Anonymous says:

        I admit it’s been a while since I’ve been “behind the scenes” but what I saw at the time was horrendous and yes, files were stacked up along walls, not secured and falling apart. Those blue folders they hold the records in don’t last long.

      • Anonymous says:

        CBC does have a significant amount of files that are in folders awaiting to scanned, expanding the electronic database. Go ahead and try and deny that as well.

  10. Anonymous says:

    What about complaints of unpaid pensions that were never addressed or acknowledged? What of complaints that were never enforced? Will those people ever get their money?

    • Anonymous says:

      Sorry – depends who you are and who you know; that way nothing ever happens to those employers!

  11. Anonymous says:

    Sandy, start looking for another job. You ruffle too many feathers, put too many people on the spot, demand answers that too many can’t/won’t give, hold too many to account and generally stick the boot in. Don’t you know your place? White, female, ex-pat with a brain? You’re not welcome here!

    • Anonymous says:

      Why do you want her to not be welcome here?

    • Anonymous says:

      CNS, 8:12 pm comment sounds like a thinly veiled threat. Should be investigated by RCIPS.

      CNS: No it wasn’t a threat, it was a compliment. The commenter was saying that she is too smart and doing too good a job, which is threatening to the powers that be, so they will therefore seek to dismiss her – an oblique reference to what many think happened to previous government watchdogs.

      • Anonymous says:

        Thumbs up for CNS clarification. Nevertheless the whole position of what happens to whistleblowers in Cayman is deeply troubling.

      • Anonymous says:

        7.54 Thank you CNS for that. The sarcasm was obviously too subtle for some. It was indeed a compliment for Ms Hermiston. I’m sure she knew that too.

    • Anonymous says:

      This is a very toned down decision. She was actually hired because she wouldn’t ruffle any feathers, when compared to others.

  12. Anonymous says:

    Seriously? WTF is new? She is surprised there is gambling in the casino? This is standard operating procedure throughout the government. I would be expecting her office to tell us stuff we do not know! How do we actually achieve some responsible efficient governance around here?

    • Anonymous says:

      “How do we actually achieve some responsible efficient governance around here?”
      I can answer that: “Just get honest people in the government”.
      “How can we get honest people in the government?” Sorry…… That hasn’t been discovered yet!

  13. Anonymous says:

    This inept office needs a shake up. Total lack of disrespect shown to persons who go there for a pensions issue or a labour issue. Case in point, took a family member 11 emails to get a simple pensions question answered. And me personally, well I was told by a lady in labor that my matter went too long and they were unable to get it to courts. A sepcific word was used by the lady which i do not recall. Isnt this not 2 failures of the department in the last few months??

    • Anonymous says:

      This, like immigration, falls directly under Alden. A total disaster.

    • Anonymous says:

      Have been trying to get my pension switched over for years,, yes, years. Totally inept.

    • Anonymous says:

      Government seems to always make laws and then not provide the resources that are necessary to administer and enforce those laws. The department needs to be provided with a proper staff complement, the necessary systems and support to fulfill their job. Furthermore, please need to be held accountable for not doing their job properly.

      By the way, they are still not open to the public, post COVID.

      • Anonymous says:

        They dare not open. They are the same people who told employers that they did not have to pay employees while their businesses are closed, breaching thousands of contracts of employment and depriving thousands of people of their rights. You literally could not make this shit up.

        • Anonymous says:

          Don’t talk what you don’t know. There is a difference in contract law and labour law. DLP can’t enforce contract law, only the Court can.

          Really, you want some one to pay you for not working, don’t we all?!

          • Anonymous says:

            Ummm, I am well aware of the difference. And yes, if my contract guarantees me certain conditions whether or not I am working, then my employer has to abide by them. Failing to do so is a breach of the law, whether or not the DLP thinks so. Every employee is entitled to be treated in full accordance with the contents of their lawful contracts. If your employer cannot pay you then you are redundant, and entitled to payment of severance etc. you cannot have it both ways. Employed so no severance, not working so no pay. That is madness (and contrary to the Law).

  14. Neverwannabeacivilservant says:

    This is the norm for the Civil Service, they often think they are above the law. World Class Service?.

    • Anonymous says:

      They are above the law. No accountability, ever.

    • Yes Minister says:

      Heads of Government Departments are held responsible for everything. As a former civil servant chief Officers ducks responsibility from everything. For those that do not know every Department under a Ministry, the Department Budget has to be approved by their Chief Officer who most of the time have less experience and less qualification that the HOD but because of political connection is promoted.
      The politician do not want the civil service to have the necessary resources because you will have all their friends in the Chamber complaining to them. This is the politician way of protecting the chamber members without being held responsible and the civil service is taking the blame. Ask your self who has the most to benefit if the DLP is under reaourced. Answer the business owner who can refuse to pay minimum wage, not pay for over time or not pay their employee pension. DLP is under resourced so it is the civil servant fault, so they get shafted and the business owner walks away laughling and having a drink with the politicians while the former employee is now upset with the CS instead of his previous employer. Many Government departments are under resourced to do their jobs and the Chief Officer has paid back the politician for his promotion. Now you understand how politics works. Yes Minister, i understand the right thing to do is nothing.

    • Proudcivilservant says:

      Another private sector tribunal giving the civil service a bad name.

      Wait untill the records are published and we find out all of the unfair dismissals happening in the wacky private sector.

      Get rid of all private sector boards and tribunals. Look at Ofreg board.

      • Anonymous says:

        And yet that same Civil Service exempts itself from the Labour Law and the scrutiny of the Tribunal. Sandy, could you please order the Civil Service to publish its records as to the treatment of its staff. You know, people like Linda Evans, Kim Davis, Bryan Tomlinson … Fair is fair. #WorldClass.

      • Neverwannabeacivilservant says:

        12.00am “Wait until the records are published” – you have to be kidding!. Either they have been lost or much more likely they show so much ineptitude and bias in the department, they will never see the light of day. All in the name of no accountability in the Civil Service.
        There are dimissals in the private sector, but in banking where I worked the reasons were well documented and always available to the Labour Board.

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