A lawyer for the claimants in the vaccine mandate case says her team will oppose the government’s application for a stay of execution of the court order.
Shirlan “Zita” Barnwell noted at a joint press conference of the Teachers Union and Public Service Union, on Friday, that the claimants’ livelihoods are at stake.
“… certainly, this is not one in which we believe that the stay ought to be given,” she said, noting lawyers sometimes simply say it is not worth it to oppose a stay of application because the court is likely to grant it anyway.
“So, we will be opposing the stay,” Barnwell said, noting that ultimately, the court would decide.
“So, while we work, again, as hard and fierce as we have done before, the final decision remains the court’s decision,” she said, noting that as far as industrial relations are concerned, the union would decide how to address the matter.
“I can only deal with it as we are — as lawyers,” Barnwell said.
Last week, the High Court ruled in favour of workers who the government dismissed under the COVID-19 vaccine mandate in December 2021.
Justice Esco Henry said that the workers never ceased to hold their respective positions and are entitled to all their salaries and benefits, as well as punitive damages to deter similar actions by the government in the future.
The government has said it would appeal the judgment and apply for a stay of execution of the court order.
Barnwell also addressed the government’s response to workers who had attempted to return to their jobs in light of the court ruling which said they never ceased to hold their jobs.
The lawyer said that some people were told to speak to a permanent secretary and in two other cases they were told to contact the attorney general.
“I have a difficulty with the AG being put in the mix because the Attorney General’s Chambers is the advisor for the state. The Attorney General has been named a party in this matter,” Barnwell said.:
“And I know sometimes they try to weed through and try to sift out some structural issues of how things are set up. That’s not my problem. But what I know is that the Attorney General or the Attorney General’s Chambers doesn’t have the power to fire or hire, discipline, or direct any public servant. None whatsoever.”
The lawyer said the law gives these powers to the Public Service Commission, the Police Service Commission, and the Commissioner of Police.
“So, I don’t know how the Attorney General or the Attorney General’s Chambers got in the mix of advising our clients or advising you, the public worker, on what you can and cannot do.”
Barnwell said the senior officers told the workers about the government’s intention to appeal an application for a stay of execution to get them off their backs.
“There may be a stay filed. The point of the matter is that until the court determines that, the order of the court is in action,” Barnwell said.
He said that perhaps the government was “caught with their pants down” adding that “the arrogance of the state” was displayed by the attitude that the government was “cocksure” that it made no preparations whatsoever regarding how to respond to workers in the event that the state lost the lawsuit.
“It is also the kind of a disrespect … with which you have been treated again — total disrespect,” Barnwell said.
Barnwell said it is highly unlikely that the government would win an appeal of Justice Henrys’ decision.
“This is not a case about whether or not the vaccine is effective. This is not a case about whether the vaccine is safe,” Barnwell said.
“This is a case about whether or not when the government made its law in the context of a pandemic, it did so respecting the laws, respecting the rights of people, balancing the rights of individuals against public interests, and also whether or not in doing so it was proportionate. They need to address that,” she said.
She also described as “hogwash” the suggestion by the government that it is going to the Court of Appeal for clarification on how the government is to respond to a pandemic.
“And I say that because the court has said to you in what manner you have failed to implement certain types of laws,” Barnwell said.
“You mean the court then will sit you down and tell you how to draft legislation? I don’t think so. It is not going to tell you what to do. The court is not going to point out to you and say to you next time you need to use this word, don’t put that there…”
But Barnwell said one of the biggest hurdles the government faces is the legal definition of “abandonment”.
“… that definition being changed to say … if you didn’t take the vaccine, automatically, you have abandoned your job within the meaning of the provisions of the law under Section 31, saying that you’ve been absent for 10 days.
“I don’t even have to bother because at least they know they lose from that one dey alone. I don’t know how is it that they think they can cross that…” Barnwell said.
The lawyer further said that the government said that under the mandate, public sector workers had the option as regards taking a COVID-19 vaccine.
“The option was, you take it or you may have a medical exemption. If you apply for it and you ain’t get it well, you could have had a religious exemption.
“You apply for the religious exemptions and you ain’t get it, what did they say…? Too bad,” Barnwell said.
“Too bad was the attitude of the state [to] people who have been dispossessed of their earnings, … who couldn’t feed their children, … who had suffered mental issues, serious mental issues. That it was too bad for you. Your rights being violated. Too bad. Too bad. Well, we say too bad you lost,” the lawyer said.