NWC could face lawsuits
Attorneys believe businesses have cause for class action

FOLLOWING the strike by National Water Commission (NWC) employees last week, some business owners are concerned about the financial blowback this will have on their company, and at least two attorneys have noted that given the circumstances, a class action lawsuit may be a viable solution.

Attorney-at-law Neco Pagon, in an interview with the Jamaica Observer, said there are two questions that need to be answered in a situation such as this: Was the contract breached? And were any damages suffered as a result?

“There has been a breach, that is a fact, by failing to supply water. There must be some causal connection between the lost suffered and what was contemplated in terms of the contract. So, for instance, if I am doing like a waterworld-type business or if I’m even running a water [for consumption] type business [for] filtered water to sell, they would be in a position to recover the losses they have suffered,” Pagon explained.

However, he cautioned that both contracts would include clauses detailing “intervening circumstances”.

“The intervening circumstances are such that [if] no party anticipated and couldn’t [have] done anything to prevent it, then the law protects the breaching party,” he said, noting that a hurricane would be considered an intervening circumstance, as well as workers striking, if the company was not properly notified by the employees on strike.

“You have to also appreciate that NWC would be classified as one of those essential services — much like doctors, judges, police officers — so they are not allowed to strike without following certain protocols like giving notice and stuff like that. I do not know if that was done, so if that was not done at all it would mean that the businesses and us Jamaicans, just like NWC, would not have reasonably anticipated that a strike would have come,” Pagon said.

Advising business owners looking to take legal action, Pagon stated that they should first write to the NWC outlining their loss and then NWC would be in a position to give some sort of compensation.

But, he also suggested that they petition the Government to prevent these types of strikes.

Attorney-at-law Michelle Thomas agreed, arguing that anyone who had been affected has the right to file a lawsuit because “The National Water Commission was engaged to provide an essential service, which is to provide water to the residents of Jamaica, and failure to provide the water would open them up to action.”

However, she stressed the need for the country to recognise that the strike was due to a broader issue.

“We are looking at a Government that simply overlooked the needs of our essential workers and it is something that should touch the hearts and minds of everybody in Jamaica. So yes, we were out of water, the hospitals were disadvantaged, a lot of people would say that it affected our economic viability during the period… Sometimes when we want better we have to take justice because this Government has scant regard for the needs of its people,” Thomas stated.

One company which suffered from the strike was Bodyscape Rejuvenation Centre. Owner Chantelle-Lee Barrett told the Observer that although the business was not out of water for the two days the NWC employees were on strike, she still had to cancel a number of clients.

“I think it pretty much affected most of the island in one way, shape or form, even if not directly. As it relates to the business, the impact was not severe because there is a water storage system that is in place, mainly the use of tanks. Of course, there are staff members who would have been impacted; the absence of water prevented persons from taking a shower to come to work, so we were impacted by staff shortages,” Barrett said.

“We had about two people that were directly impacted so they were not able to show up for work. That resulted in us having to either reschedule, or for those clients that a reschedule was not an option, we went ahead and cancelled [and] there would have been some losses there…It has been significant enough to affect the daily income of the company,” Barrett said, noting that she employees 12 people at her Portmore, St Catherine, location.

Anthony Miles, owner of Miles 1Stop Barber and Beauty Salon, said his business was affcetd by the strike.

“The hairdressers them weh do like shampoo and creaming services and stuff like that couldn’t work,” Miles explained, adding that during the two days the business was impacted, he had to turn away 15 customers.

“We didn’t shut down completely because we have other persons weh do eyebrow and trimming styling, so it’s just like the chemical services and bathroom purposes and stuff like that. We didn’t get any time to prepare because the same day I know about it, the same day the water gone,” Miles said.

Meanwhile, Jamaica Hotel and Tourist Association (JHTA) President Clifton Reader said he isn’t aware of any discussions among hotel owners to take legal action for the disruption.

“The only concern that was out there was whether or not the strike was legal, because they were supposed to be essential services. That’s the only question that was asked,” said Reader.

Asked if he would support those who plan to take legal action, he responded: “I think the amicable resolution would be somewhat better. Yes, a lot of people have lost a lot and everything, but I don’t think [that] at this point we have a lot of information to really make a comment on it in that respect.”

In additon, Keith Duncan, president of the Private Sector Organisation of Jamaica (PSOJ) said he understands why many people may have been infuriated, but did not offer a position on the possibility of a class action lawsuit.

“Water is essential to us in our daily lives on both levels. At the personal level in our homes, in our communities and in our businesses,” he said.

“A strike is very disruptive to us in all aspects of our lives. So, I quite understand the frustration, but I do not have a position on the legal standing.”

More than 2,000 NWC employees took industrial action over an outstanding reclassification exercise as well as the ongoing public sector compensation review, last Tuesday. On Wednesday night at 11:00, the NWC employees began returning to work, restoring water in pipes across the island.

Candice Haughton

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