Lawyer Jomo Thomas today (Tuesday) expressed confidence that the Court of Appeal will rule against the government in its application for a stay of execution of the High Court decision in the vaccine mandate case.
A Court of Appeal judge will consider, today, the arguments for and against the application and Thomas said that a decision could be handed down immediately after.
“… I would assume that the judge who’s doing the analysis to decide on the stay would be making a decision today, which means that more than likely the judge would have already read the submissions,” Thomas said in his Plain Talk commentary on Boom FM.
Thomas is leading the legal team that represents the public sector workers fired under the COVID-19 vaccine mandate that the Ralph Gonsalves-led Unity Labour Party government implemented in December 2021.
Hundreds of public sector workers lost their jobs and the Teachers’ and Public Service unions as well as the Police Welfare Association have sponsored a lawsuit against the government, challenging the mandate.
On March 13, High Court judge Justice Esco Henry ruled that none of the workers ceased to be entitled to hold the respective offices as public officers and police officers within the relevant ministries, departments or the Royal St. Vincent and the Grenadines Police Force, to which they were appointed respectively, by the Public Service Commission (PSC), the Police Service Commission and the Commissioner of Police and held at the relevant time.
She said that the dismissed workers are entitled to the full pay and all benefits due and payable to them in their respective capacities as public officers or police officers, inclusive of any accrued pension and gratuity benefits or rights from the respective dates on which they were deemed to have resigned.
The court held that the manner in which the government implemented the mandate was a breach of natural justice, contravenes the Constitution, is unlawful, procedurally-improper and void.
The government has appealed the decision, saying that the judge was wrong in her conclusions.
It has further asked the Court of Appeal to grant a stay of execution of Justice Henry’s order.
Thomas said that the judge considering the application for a stay of execution would have had a chance to read Justice Henry’s decision, the grounds of appeal, the application for the stay, the legal submissions in support of the application for the stay as well as the submissions from the representatives of the Teachers’ and Public Service unions and the Police Welfare Association.
“So that decision is going to come down sometimes soon. It could be as early as today… So, I know that the workers and their unions or association are looking forward to this decision of the Court of Appeal.”
Thomas said that having travelled to both the leeward and windward sides of St. Vincent, his view is that “many, many people are hoping that the court denies the government’s application for a stay.
“I must say that I am also hoping that the court denies the application for a stay. I think there’re very strong reason for the denial of such an application,” he said.
The lawyer said that primary among these reasons is that “the biggest argument, the strongest argument in my estimation, which the government is making, is that it says that a denial of a stay would throw the state into administrative chaos because it would now have to take back in 200 and something employees and that may be difficult to do”.
But Thomas doubted this, saying that having looked through the Gazette, his team “did not see any evidence that an overwhelming number of people were hired within that period, particularly into the teaching profession.
He said that his count shows that not even 50 teachers were hired. “But there are close to 170 teachers who refused to take the vaccine,” Thomas said, adding that this means that the government is required to reinstate 120.
“… we don’t see why there will be administrative chaos,” the lawyer said, adding that the government should have been anticipating the real possibility that the court would have found the mandate and resulting dismissal of workers to be “wrongheaded”.
Thomas said the situation is further compounded by the fact that as early as August or September last year, Gonsalves was encouraging public workers to reapply for employment.
He noted that the prime minister had argued that if they returned to their jobs, the workers would be in a win-win situation should the court rule in their favour — as it did.
“… if that’s the government’s position from as early as August, September of last year, then we cannot see how they can persuasively make an argument that there’s going to be administrative chaos,” Thomas said.
He, however, said he believes the government probably wants to pick and choose who it’s going to take back, as compared to if it carries out the order of the court, in which case it would have to reinstate all the workers concerned.
Thomas said this picking and choosing does not take place at the level of the Public Service Commission, which has the authority to decide who to hire.
“The picking and choosing, apparently, takes place higher up the executive chain and some politician seems to be saying who should be hired and who should not be hired.”
He noted that in her decision, Justice Henry said that the Commissioner of Police and the chairman of the PSC admitted that they ceded to the minister of health, without debate or challenge, powers that the Constitution gave specifically to them, thereby doing exactly what the Constitution tries to prevent.
“So, when we look at all of this, I am hoping … that the court would not support, would not OK the government’s application for a stay of execution of Justice Henry’s decision,” Thomas said.
“My own estimation is that Justice Henry’s decision is very sound in law, she is a judicial officer of high integrity, very scholarly in her work and I remain convinced that decision would stand up to judicial scrutiny at the higher court.”
Thomas further expressed confidence that the Court of Appeal would uphold Justice Henry’s decision when the substantive appeal is heard.
“Well, let me put it this way: the government has a high mountain to climb. I think that mountain is higher than Soufriere,” he said, referring to the nation’s highest peak.
“They have a high mountain to climb to get a court of appeal to overturn Justice Henry’s substantive decision on issues of abandonment, on issues of the loss of pension and gratuity and so forth.”