A lawyer for the applicants in the legal challenge to the vaccine mandate in St. Vincent and the Grenadines says his clients ‘got essentially what we wanted” in the court ruling handed down on Thursday.
“We get to judicially review the dismissal of the applicants, and by extension, the dismissal of all of these persons who were dismissed by the government,” Jomo Thomas told iWitness News hours after the ruling.
“They argued that we should not be allowed leave. And we now have leave. So how could it be a victory for them?” he said, referring to the respondents.
“We were going for the whole hog [but] the court is telling us, well, ‘We’re not gonna let you review the government’s ability to set up a vaccination programme’,” Thomas further told iWitness News.
In her ruling, High Court Judge Justice Esco Henry allowed the individuals named in the lawsuit to challenge the government’s decision to dismiss them for not taking a COVID-19 vaccine.
The government dismissed hundreds of public sector workers under a law that barred them from attending work if they were unvaccinated against COVID-19.
However, deemed the workers to have abandoned their posts after 10 consecutive days off their job. Unvaccinated workers were deemed guilty of misconduct under the public service regulations if they went to work.
Justice Henry refused an application for judicial review of the government’s decision to implement the vaccine mandate.
The judge gave permission for 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 2021 — commonly referred to as the vaccine mandate.
“So she’s saying she’s not going to allow us to challenge the government’s ability to put the mandate in place. However, as she goes on to say, the applicants’ claim for leave to apply for judicial review of the minister’s decision to make rule 8(1) and 8(2) of the SRO is granted, limited to the issues of illegality, procedural impropriety and proportionality.”
Regulation 8(1) provides that unvaccinated employees must not enter the workplace and is to be treated as being absent from duty without leave.
Regulation 8(2) states that Regulation 31 of the Public Service Commission Regulations applies to a public officer who is absent from duty without being on leave.
The court struck out the SVG Teachers’ Union, the Public Service Union, and the Police Welfare Association as parties to the claim, and the attorney general as a respondent.
Thomas pointed out that the court did not rule on any constitutional matters relating to the vaccine mandate.
“For example even if Justice Henry had denied us leave to file for judicial review of Section 5(1), section 8(1) and 8(2), we would have still had a constitutional motion before the court,” he said.
“The constitutional motion has not been filed yet. The weirdest thing happened is that in the government’s argument, they tried to get the judge to deny our ability to file a constitutional motion.
“We laughed at that, because how could a judge rule on a motion that is not before it? We had simply channelled to the court, that this is a joint judicial review-constitutional motion.”
Lessons from Antigua
Thomas said that his legal team was concerned about issues having to do with the Teachers’ Union, the PSU and the PWA as applicants.
“Consequently, we didn’t do as our colleagues in Antigua did — simply had the union’s do it. We had two applicants from each body.”
With the labour rights groups having been dismissed as parties to the claim, the court will consider the applications of 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 their government.
“Had we simply filed in the name of the union, [Senior Counsel Anthony Ashtaphan and his team] would have knocked us out on technicality that precisely, as the court ruled, these were not representative bodies.”
Thomas, however, said that case law is divided on whether representative bodies should be part of the claim.
“… and, hopefully, there is going to come a time when they will be allowed. Because some cases have been allowed, even in St. Vincent,” he said.
The lawyer mentioned a case that his firm won against the government, in which Teachers’ Union President, Oswald Robinson, was allowed to represent the union.
“There are cases from Grenada, where the unions have brought matters in their own name. But there are also cases across the region, including from the Court of Appeal, which says unless there’s an actual statutory provision, which allows the unions to bring the claim in his own name — that it cannot happen.”
The lawyer said that while he had not seen Thursday’s judgment, the brief his colleagues provided suggested “that Justice Henry even leaves an opening, that maybe sometime in the future, unions will be able to bring the action in their own name, once they’re able to indicate that they have an interest that is fundamental to the cause which they are pursuing.”
Thomas said that his legal team remains optimistic about the outcome of the lawsuit.
“We are extremely optimistic. We have been optimistic all along… We have 14 days within which to file the fix date claim for judicial review. And we are going to do that,” he said.
Thomas said that with the ruling, the government should rethink the vaccine mandate “in the light of the fact that the science has completely abandoned this notion that if you keep unvaccinated persons out of the workplace, you’re essentially protecting those persons who are there, you are protecting the workplace or making the workplace safe.
“The science has completely abandoned that view and I don’t think that’s in question anymore. Well, again, that’s one of the questions. The science was never really there.
“But now more than ever, everything is going to open and there cannot be any serious argument that this vaccine or any of the vaccines protect the workplace and protect the workers who are there.”
The first hearing of the application for judicial review is to be scheduled to a date in April or May 2022, convenient to the parties to be fixed by the registrar in consultation with the parties.
The court ruled that each party shall bear his, her or its own costs.
Cara Shillingford, of Dominica, as well as Vincentians counsel Shirlan “Zita” Barnwell, Jomo Thomas, and Israel Bruce appeared for the claimants.
Senior Counsel Anthony Astaphan, of Dominica, as well as Vincentian Crown counsel
Kezron Walters and Cerepha Harper represented the attorney general, minister of health and commissioner of police.
Grahame Bollers represented the Public Service Commission