Summary of SVG COVID-19 ‘Vaccine Mandate Case’

Background:

This case arose from the COVID-19 vaccine mandate imposed by the Public Health (Public Bodies Special Measures) Rules, 2021 (Special Measures), which required frontline public officers (including police officers, teachers, and healthcare workers) to be vaccinated or be deemed absent without leave and ultimately dismissed from their positions.

The respondents (public sector employees) refused to comply with the vaccine mandate, and as a result, were deemed to have abandoned their positions after being absent for 10 consecutive days, in accordance with Regulation 31 of the Public Service Commission Regulations and Section 73A of the Police Act.

They challenged their terminations before the High Court, arguing that:

• Rule 8 of the Special Measures was unlawful, unconstitutional, and void.
• The Minister of Health had exceeded his authority by creating Rule 8 without the advice of the Chief Medical Officer (CMO) as required by law.
• Their constitutional rights (protection from deprivation of property, pension rights, and natural justice) had been violated.
• They were denied due process, as they were not given an opportunity to be heard before their dismissals.
• The High Court ruled in their favour, declaring their dismissals unconstitutional and ordering relief. The Government (Appellants) appealed the decision.

Issues on appeal:

The Court of Appeal was asked to determine:

1. Was Rule 8 of the Special Measures unconstitutional or unlawful?

• Did the Minister of Health fail to act on the advice of the Chief Medical Officer (CMO)?
• Did the Minister of Health usurp the authority of the Public Service Commission?
• Did Rule 8 violate constitutional protections on property and pension rights?

2. Did the Public Service Commission and the Police Service Commission violate procedural fairness?

• Were the respondents denied the right to be heard before their dismissals?

3. Was the COVID-19 (Miscellaneous Amendments) Act unconstitutional for violating the separation of powers?

Judgment & Key Findings:

Majority Decision (Ventose JA & Webster JA [Ag.]) – Appeal Allowed

1. Rule 8 was lawful and constitutional:

• The Minister of Health acted within his authority under the Public Health Act to issue Rule 8, even without CMO advice.
• Rule 8 did not usurp the Public Service Commission’s authority because it did not remove employees but merely defined absence from duty due to non-vaccination.

2. Dismissals were legally justified:

• Since the respondents were legally absent under Rule 8, Regulation 31 (deeming them to have resigned) applied automatically.
• There was no requirement for a hearing before dismissals, as absence triggered automatic resignation by operation of law.
• No evidence showed that the respondents had legally protected pension rights that were unlawfully taken away.

3. Proportionality & Public Health Justification:

• The vaccine mandate was a proportionate measure in response to the serious threat posed by COVID-19.
• The rule balanced individual rights with public health needs.
• Separation of Powers Not Violated:
• The Parliament lawfully delegated authority to the Minister to implement COVID-19 emergency measures.
• The law ensured Parliament retained control, so no improper delegation occurred.

Outcome:

The High Court ruling was overturned. The dismissals were upheld, and no damages were awarded to the respondents.

Dissenting Opinion (Wallbank JA [Ag.]) – Appeal should be dismissed

• Rule 8 unlawfully changed the definition of “abandonment of office”.
• The term “absent without leave” was expanded artificially to include unvaccinated employees.
• This disregarded common law principles of what constitutes job abandonment.

Dismissals violated natural justice:

• The respondents were never given a chance to justify their refusal to vaccinate before being removed.
• The decision-making process was flawed because authorities assumed all non-vaccinated employees had no reasonable excuse.

Constitutional violations (pension rights & property deprivation):

• The dismissals resulted in loss of pension rights, amounting to uncompensated property deprivation under the Constitution.
• Less intrusive measures could have been used, making the mandate disproportionate.

Outcome (Dissenting View):

The High Court ruling should have been upheld, and the dismissals should have been declared unconstitutional.

Conclusion:

• The majority of the Court of Appeal upheld the vaccine mandate and dismissals, ruling that public health measures justified the employment consequences.
• The dissenting judge argued that the dismissals violated fundamental rights and lacked procedural fairness.
• The case sets a precedent on the legality of COVID-19 vaccine mandates and their impact on employment and constitutional rights in St. Vincent and the Grenadines.