Seven months after Prime Minister Ralph Gonsalves urged workers fired under the COVID-19 vaccine mandate to re-apply for employment, saying it is “not a trick”, his government has told the court it cannot find the money to meet back pay to these workers, as ordered.
The government has appealed the decision of the court that the government’s vaccine mandate was unconstitutional.
It has further asked the court to grant a stay of execution of the order that the workers who were dismissed never ceased to hold their posts, should be paid all salaries and benefits they would have received had the mandate not been enforced. As well, the judgment recognizes punitive damages suffered by the plaintiffs.
Lawyer Kay Bacchus-Baptiste, the opposition New Democratic Party’s (NDP) caretaker for West St. George, discussed the appeal and application for stay at a party rally in Kingstown, on Thursday.
Citing court documents, Bacchus-Baptiste said the prime minister is arguing that the salaries for the affected workers for March 2023 alone is EC$808,000 and EC$11,000,300 for the period dating back to December 2021.
“Well, I asked the question, are you telling the court that if you have to pay out that money, you will be ruined? St. Vincent government can’t find $11 million or they will be ruined?” Bacchus-Baptiste said.
She said that in order to obtain a stay of execution, a party has to convince the court that it would be ruined if the payment is made.
“I don’t see how any government who hopes to continue ruling can say that to find $11 million dollars will ruin them. What is more, how much money he got for COVID relief?” the lawyer said.
“Every single Vincentian could get $1 million from just one of the donor agencies they got. And you are telling me you can’t find $11 million? This needs to be burnt. That is what it is worth,” she said, as she held up a document related to the appeal and application for the stay of execution.
Bacchus-Baptiste, who is not involved in the case, explained that the court does not automatically grant a stay of execution.
“It is an uphill battle,” she told the rally at the party’s headquarters, Democratic House, in Kingstown.
“… the first cardinal principle is that litigants who win must enjoy the fruits of the judgment,” she said, adding that in the extant case, this means that the affected workers should go back to work and should get their salary, back pay and other benefits.
“And you have to come very high to convince a court that the litigant should not enjoy the fruits of the judgment,” said Bacchus-Baptiste, a former senator, who represented the NDP in West St. George in the November 2020 general elections.
She further said that when applying for the stay of execution, the party must convince the court that it has a reasonable case to argue before the Court of Appeal.
The lawyer said that the appellant must convince the court that in the absence of a stay, the appeal would be rendered nugatory — meaning that it would otherwise make no sense to appeal – and that the appellant would be ruined.
She noted that an appeal could either approach the High Court or the Court of Appeal for a stay of execution.
“Most times lawyers apply here. It’s quicker, the High Court is sitting right here,” she said, but noted that the government has applied to the Court of Appeal for a stay of execution.
“Of course, it tells you something. They’re not confident that if they come before the High Court judge in St. Vincent that they will be successful,” Bacchus-Baptiste said.
She said that in the application for the stay of execution, the government has argued that it would suffer or be exposed to injustice and irreparable harm if a stay is not given.
“The Government? Who is the government of St. Vincent and the Grenadines? Is it the Commissioner of Police? Or is it the Public Service Commission or the Attorney General?” Bacchus-Baptiste said, mentioning some of the specific parties who are appealing the judgment.
“Who will suffer irreparable harm? Has to be the people. It has to be the teachers,” she said, noting that the government has said it would suffer injustice if the stay is not granted.
She expanded on the government’s claim that the appeal will be rendered nugatory – meaningless — if the stay is not granted.
In making this argument, the government argued that in the absence of a stay, the workers would secure all that the court awarded them before the appeal is heard and the government would be unlikely to recover the money paid to the workers, if it wins the appeal.
“Now, this is a non-argument,” Bacchus-Baptiste said.
“This is what they’re saying, hoping to hoodwink the Court of Appeal…” she said.
She noted that once the workers are allowed to return to their posts, as the court has ordered, they will be working for any salaries or benefits they receive while the appeal is being decided.
“It is absolutely ridiculous to use that as a ground that the appeal will be rendered nugatory,” she said.
The lawyer said the government may have “a little point” that if the back pay is paid, then they may not be able to get it back.
“But the point, as I said again, who put them on the breadline? Who put them out of a job for all these months? And why should they suffer the injustice but the government not suffer the injustice?” the lawyer said.
She further said that the government has complained to the Court of Appeal that the trade unions – which sponsored the lawsuit – have said in the media that the workers should return to their job.
Bacchus-Baptiste said the government is “very arrogant” in making this argument to the court.
“It is the duty of the unions to advise the workers to obey what the judge says,” she said.
The lawyer further said the government is arguing that the implementation of the orders, prior to the termination of the appeal, will cause severe disruption in the public service.
The government is claiming that people who now occupy the posts filled after the workers were fired will have to be removed to facilitate the order of court before the hearing of the appeal.
“This is not only disrespectful of the court order; it is disingenuous,” Bacchus-Baptiste said.
She noted that while the government was making this argument to the court, the state-owned Agency for Public Information, in a March 20 report, said the Government “has repeatedly called on unvaccinated teachers to re-apply for their positions within the system, with benefits intact”.
The release further quoted the prime minister as urging unvaccinated teachers to reapply to re-enter the service, noting that unvaccinated teachers can now return “simply because the threat has receded”.
“How are you going to tell the Court of Appeal that you have no space? This is what he’s saying. There is no space.”
She noted that the prime minister’s affidavit in support of the stay, said that reinstating the workers would cause severe disruption in the Public Service as those now occupying the post will have to be removed to facilitate the order of the judge.
Bacchus-Baptiste accused the prime minister of “speaking out of two sides of his mouth.
“This appeal is not legal; this appeal is only political,” she said.
“Gonsalves and his government think that the judge is only right when they win. If they don’t win, they will do everything to frustrate.”
She said the government has mentioned pursuing the case all the way to the London-based Privy Council, the nation’s highest court.
“So how long are these teachers supposed to wait and other civil servants before they go back out to work? If you’re going to apply for a stay of execution, you have to be honest. You have to disclose everything you have to be full and frank.
“Why didn’t he disclose that from since [August] last year, he was telling people to come back and get their jobs? Where is he going to put them if he’s telling the Court of Appeal, it will cause severe disruption?” she said.
Bacchus-Baptiste further said the government is arguing that the status quo should be maintained.
“In other words, they’re really saying that all these 271 litigants must remain on the breadline. They ought to remain on the breadline until he has exhausted his appeals.”
The lawyer noted that the court had ordered that the election petition filed in 2015 be heard expeditiously.
She, however, said that they were not resolved because the 2020 election came before the appeal in the matter was heard.
“So, the point is, petitions which should have been heard expeditiously have not been heard. Do you think that this appeal would be heard in a short time so these teachers could know what their fate is? No!” she said.
“So how can we, how can the people of St. Vincent and Grenadines sit back and allow this wicked government, this unconscionable government to keep over 271 families — and that is only those who are on the judgment; there are many other Vincentians also are the breadline, who are forced to retire.
“So, I’m saying that most of the grounds laid out here are not maintainable,” Bacchus-Baptiste said.