KINGSTOWN, St Vincent– The High Court denied permission to review the COVID-19 vaccine mandate in St. Vincent and the Grenadines (SVG). However, the court will still consider the case of workers who were fired for not being vaccinated.
Justice Esco Henry said the court should hear the case by former government workers dismissed for abandoning their posts, even though the law under which they were fired deemed them absent if they attended work while being unvaccinated against COVID-19.
Former primary school teachers Shanile Howe and Novita Roberts; Cavet Thomas, a former senior customs officer; Alfonzo Lyttle, a former assistant supervisor employed with the Customs and Excise Department; Brenton Smith, a former station sergeant of police; and Sylvorne Olliver, a former corporal of police, brought the lawsuit against the government.
The lawsuits were sponsored by labor rights advocates, the SVG Teachers Union, the Public Service Union (PSU), and Police Welfare Association (PWA). However, the court ruled that they were not competent to bring a suit in their names in the proceedings. The ruling struck out those three bodies and the Attorney General as parties to this part of the proceedings, specifically the application for leave to seek judicial review.
The judge permitted the court to review the legality of the Minister of Health’s decision to make Rule 8(1) and (2) of SR&O No. 28 of 202, commonly referred to as the vaccine mandate.
Regulation 8(1) provides that an unvaccinated employee must not enter the workplace and be treated as absent from duty without leave.
Regulation 8(2) states that Regulation 31 of the Public Service Commission Regulations applies to a public official absent from duty without being on leave.
Under Public Service Commission Regulations, a public officer who does not attend work for ten days without being on leave is considered to have abandoned the job.
The court, however, limited the review to the illegality, procedural impropriety, and proportionality grounds in sub-paragraphs 7(g), (h), (i), (n), and (p) of the notice of application and related grounds.
In 7(g), the applicants argue that the effect of the application of Regulation 31 is that a person who refuses or otherwise fails to take the COVID-19 vaccine would be deemed to have abandoned his job after ten consecutive days of being debarred from attending his workplace.
The judge also ordered that the court should hear the arguments that Howe, Roberts, Thomas, Lyttle, Smith, and Olliver have all been debarred from attending their workplaces for a period of excess of 10 days. By way of letter, the Minister of Health and PSC terminated their employment without providing them with an opportunity to be heard.
The court will also hear arguments and rule that the application of Regulation 31, among other things, has the effect of depriving the applicants of their accrued pension and benefits arising from decades of service under section 6 of the Pension Act.
The judicial review will also consider where the rules under Regulation 8(1) and (2) are outside the statutory mandate. They touched and were concerned about the consequence of the employment contract where a relevant employee refuses or otherwise fails to take the vaccine.
The final point that the court will consider is the applicants’ claim that “there is no rational connection between the temporary public health measure under the said SR&O and treating an employee who refuses to take the vaccine as having abandoned his or her job and permanently terminated at the instance of the employee.”
The applicants say that the vaccine mandate is “disproportionate in so far as less intrusive measures could have been taken” to achieve the purpose for which the Minister of Health was given the power to make rules.
Meanwhile, the court refused the applicants’ claim for leave to apply for judicial review of the minister’s decision to make rule 5(1) of SR&O No. 28 of 2021.
Rule 5(1) of SR&O No. 28 of 2021 established a mandatory COVID-19 vaccination program for several public sector workers that the government has deemed “frontline and essential workers.”
With the ruling, the court essentially said that the vaccine mandate was constitutional, contrary to what the applicants had argued.
A written judgment in the matter is still pending, but the court ordered that the applicants file and serve their claim for judicial review within 14 days.
The first hearing of the application for judicial review is to be scheduled for a date in April or May 2022.
Cara Shillingford of Dominica and Vincentians counsel Shirlan “Zita” Barnwell, Jomo Thomas, and Israel Bruce appeared for the claimants. Senior Counsel Anthony Astaphan of Dominica and Vincentian Crown counsel Kezron Walters and Cerepha Harper represented the Attorney General, Minister of Health, and Commissioner of Police. Grahame Bollers represent.
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