The Court of Appeal is slated to hand down on Wednesday its ruling in the “Vaccine Mandate Case” — a lawsuit that labour unions brought against the government after hundreds of public sector workers were dismissed in 2021 because they did not take a COVID-19 vaccine.
The St. Vincent and the Grenadines (SVG) Teachers’ Union, Public Service Union,and the Police Welfare Association sponsored a lawsuit in which former public sector workers Shanile Howe, Novita Roberts, Cavet Thomas, Alfonzo Lyttle, Brenton Smith, Sylvorne Oliver, Shefflorn Ballantyne, Travis Cumberbatch, and Rohan Giles are complainants.
The Minister of Health and the Environment, Public Service Commission, Commissioner of Police, Attorney General, and Police Service Commission are the respondents.
In a March 13, 2023 ruling, then High Court judge Justice Esco Henry (who is now a justice of appeal) ruled against the government on all 11 grounds of the lawsuit and held that the mandate breached natural justice, contravened the Constitution, was unlawful, procedurally improper, and void.
The government appealed the ruling and the Court of Appeal heard the arguments on May 2, 2024, but reserved its judgment.
Anthony Astaphan SC, Karen Duncan, Cerepha Harper-Joseph, Franeek Joseph, and Grahame Bollers are lawyers for the government in the case.
Cara Shillingford-Marsh, Jomo Sanga Thomas, and Shirlan “Zita” Barnwell are representing the dismissed workers.
The itinerant Court of Appeal is sitting virtually in SVG this week and has announced that it will hand down its decision on Wednesday at 9 a.m.
The government has suggested that it would appeal to the London-based Privy Council, the nation’s highest court, should its appeal fail.
The Teachers’ Union has welcomed the announcement of the judgment and has announced a press conference for later on Tuesday, as well as an online meeting with its members after Wednesday’s ruling.
At the same time, the parliamentary opposition New Democratic Party (NDP) has maintained that if elected to office in polls widely expected by year-end, it would end any pending appeal and reappoint the dismissed public sector workers with all benefits intact.
“We have given that assurance to those workers that an NDP government will reinstate those workers and they would be done with their benefits intact,” Opposition Leader Godwin Friday said at the NDP’s post-Budget town hall meeting in Kingstown on Thursday.
“That is my commitment because I believe it is the fair, just, and right thing to do. But Ralph says that if he loses the appeal, he is going to the Privy Council,” Friday said, referring to the Prime Minister Ralph Gonsalves.
“A Privy Council appeal is expensive and it takes a long time. My advice to the country, don’t give him the opportunity to do that. And by that, you vote him out of office,” Friday said at the end of his presentation.
Even before the court ruling, the government had been urging the dismissed workers to return to their jobs, with Gonsalves saying they would not lose any of their benefits.
Education Minister Curtis King said during the budget debate in January that “most” of the teachers, including his sister, who lost their jobs after the mandate, have returned to their jobs.
“I’ve been saying this in this house all the time. You don’t have to accept what I say. Ask some of the teachers; you all know them,” he told Parliament.
‘not your usual constitutional case’
During the appeal hearing in May 2024, Astaphan argued that the vaccine mandate was “not your usual constitutional case”.
He told the panel that the appeal was a matter of considerable public importance.
Astaphan said that the lawsuit arose “from the throes of a pandemic caused by COVID-19” that was hospitalising and killing the people of SVG “especially, and perhaps mostly, those who were unvaccinated”.
He said that the overwhelming evidence of the Chief Medical Officer, Dr. Simone Keizer-Beache, was that the prior measures put in place, including masking, social distancing, testing, work from home, etc., were ineffective in seeking to stop the spread of infections and deaths in SVG.
Astaphan said that based on Keizer-Beache’s analysis of the situation, the mandate was a matter of the last resort, “which, as far as she was concerned, was in the public interest”.
‘it is about human dignity’
Making a counterargument, Shillingford-Marsh, who is also Dominican, told the court that quashing the judgment would allow the government to do as it wishes to the Public Service.
She argued that the case is about the extent to which the government can force a person to take a drug.
“Now, this case is also about establishing the limits on the state’s ability to interfere with the body of a living person, a human being; it is about human dignity,” Shillingford-Marsh said.
“How far can the state go in mandating or forcing a person to take a drug? Because this is what a vaccine is? A vaccine is a drug,” the lawyer said.
Shillingford-Marsh argued that “it is absolutely wrong for any government to force a group of persons to take a drug against his or her free will to the extent that has been done in the case at bar.”
These former employees were not “forced to take a drug” they did not wish to take. All they were told was that vaccination was a health-care prerequisite for continuing the performance of their duties.