Vaccine mandate did not violate natural justice, Appeal Court rules 

The Court of Appeal on Wednesday held that the Minister of Health did not need to consult the Chief Medical Officer (CMO) before ordering that public sector workers take a COVID-19 vaccine in 2021.

In a 2-1 decision, the court held that then High Court judge Justice Esco Henry (now a justice of appeal) was wrong when she ruled that the health minister did not act on the advice of the CMO.

The Appeal Court overturned the ruling of Justice Henry, who had held that the Ralph Gonsalves government’s vaccine mandate breached natural justice, contravened the Constitution, was unlawful, procedurally improper, and void.

In a 2-1 decision, Justices of Appeal Eddy Ventose and Paul Webster allowed the appeal while Justice of Appeal Gerhard Wallbank dissented, describing the government’s action as “draconian”.

Hundreds of public sector workers lost their jobs as a result of the mandate, which came into effect in November 2021.

On Oct. 19, 2021, the Minister of Health passed Special Rules & Orders, a law passed by the Cabinet, mandating the vaccination of frontline public service employees, unless exempted by the government on medical or religious grounds. 

Rule 8(1) mandates that unvaccinated public officers who did not have an exemption were forbidden from entering the workplace and were to be “treated as being absent from duty without leave”.

Rule 8(2) provides that regulation 31 of the Public Service Regulations would apply to such public officers who were deemed by rule 8(1) to be absent from duty without leave.

Regulation 31 of the Public Service Regulations states that a public officer who is absent from duty without leave for 10 continuous days shall be deemed to have resigned his office, (unless declared otherwise by the Public Service Commission (PSC). 

Regulation further provides that the office thereby becomes vacant and the officer ceases to be an officer. 

When the Special Measures SR&O were made, no similar provision was in place in respect of members of the police force. However, an amendment was introduced to the Police Act on  Nov. 12, 2021 by the insertion of a new section 73A to such effect, in respect of police officers.

After the workers lost thier jobs, the St. Vincent and the Grenadines Teachers’ Union, Public Service Union, and the Police Welfare Association sponsored a lawsuit against the government.

The lawsuit was brought in the name of former public sector workers Shanile Howe, Novita Roberts, Cavet Thomas, Alfonzo Lyttle, Brenton Smith, Sylvorne Oliver, Shefflorn Ballantyne, Travis Cumberbatch, and Rohan Giles.

The government’s appeal was heard on May 2, 2024, and the ruling was handed down during a virtual sitting of the itinerant court in Kingstown, on Wednesday. 

Delivering the majority decision, Justice Ventose noted that there was no cross examination of either the Minister of Health or the CMO on this issue of the CMO advising the Minister of Health. 

They said this meant that there was no basis for Justice Henry to reject the evidence of the CMO and the Minister of Health. 

“Furthermore, the advice of the CMO was only relevant to the first part of rule 8(1), that is, an employee who, without a reasonable excuse, fails to comply with Rules 4 and 5 must not enter the workplace.”

The judges held that no such advice was required from the CMO before the Minister of Health could include in the law that unvaccinated workers were to be treated as being absent from duty without leave

The appeal court held that Rule 8(2) merely states that unvaccinated workers would be treated as being absent from duty without leave.

“These could not be and were not part of the advice given by the CMO to the Minister of Health,” Justice Ventose said.

The court held that under the Public Health Act, the Minister of Health had lawful power to make rules that were not made on the advice of the CMO.

The noted that the law says that the minister shall have the power to make rules generally for the carrying out of the purposes of the Public Health Act. 

The judge said there can be no doubt that the special measures, including Rules 8(1) and 8(2), were properly made by the minister, pursuant to the Public Health Act. 

He held that in any event, under the Interpretation and General Provisions Act, the Minister of Health had the implied power to enforce compliance with the requirement under the mandate that public officers must not enter the workplace while unvaccinated. 

“This is a basis founded in law that grounds the powers of enforcement of the minister,” the appeal court said, adding that Justice Henry, therefore, was wrong to conclude that Rules 8(1) and 8(2) are unlawful, unconstitutional and void on that basis.”

Another matter in the appeal was whether the PSV had subjected itself to the direction or control of any person or authority, contrary to the Constitution. 

Justice Ventose noted that the Constitution gives the commission the power to appoint, discipline and remove persons to hold or act in offices in the Public Service. 

“It is clear that these powers are vested exclusively in the commission,” Justice Ventose said, noting that the critical part of the mandate law is that an employee who, without reasonable excuse, fails to comply with Rule 4 or 5 must not enter the workplace. 

He said the words “and is to be treated as being absent from duty or leave” in Rule 8(1) merely reflect a fact that would exist if an employee failed to get vaccinated and was unable to enter the workplace to fulfill the contractual obligations for 10 days or more. 

“Rule 8(1) does not usurp any of the functions of the commission,” Ventose said, adding that Justice Henry erred in finding that it did.

When the workers lost their jobs under the vaccine mandate, the government said that they also lost their pension, a point on which Justice Henry ruled against the government.

However, Justice Ventose said the only constitutional right that is protected by Section 88 is a pension to which a person is lawfully entitled. 

He said the Court of Appeal has made plain that for pension benefits to be protected as a property right under Section 6 of the Constitution of SVG, the applicant must either qualify for or be entitled to a pension benefit as a matter of law.

The justice of appeal said that assuming the response is correct, a person who has abandoned their office under the vaccine mandate would not be eligible for pension.

He said there would be no deprivation of any property because that deprivation would arise from lack of qualification or entitlement to that pension benefit.

“The fact that a person may fall generally under a category of persons who are not entitled to a pension under the pensions law, assuming this to be true, cannot be a basis for finding that the law is unconstitutional for curating the circumstance within which a person may fall… that would COVID disentitle them to a pension.”

He said there was no evidence that any of the dismissed workers who sued had earned the right to a pension that is protected under Section 88 of the Constitution, which speaks to pensions laws and protection of pensions rights.

“In other words, the respondents had not shown that they had qualified for or otherwise entitled by law and had lost any pension benefits.”

He said that since the workers have not provided any evidence of any pension benefit which is protected by Section 88 of the Constitution, they are, therefore, not able to establish any property right protected by Section 6 of the Constitution, which protects from deprivation of property. 

The justice of appeal said there was nothing in the vaccine mandate that regulated in any way the pension benefit to which Section 88 refers, such that the respondents’ right to property in the amount of such benefits has been contravened, contrary to the constitutional protection from deprivation of Property. 

He, however, said this does not prevent an affected employee from applying to the government for their vested pension entitlements under the pensions laws of SVG. 

“Once that legal entitlement is determined as of the date of the deemed resignation, the relevant party must simply comply and apply in a normal way for any pension that is due to them from the date of the deemed resignation of any of the respondents.”

Justice Ventose said the proportionality test is used when determining issues of fundamental rights and freedoms in Caribbean constitutions.

He said that in applying this test, it is necessary to determine whether its objective is sufficiently important to justify the limitation of the fundamental right; whether it is rationally connected to the objective.

Additionally, the court must determine whether a less intrusive measure could have been used, and whether, having regard to those matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interest of the community.

“… having regard to all the circumstances, the uncontradicted evidence of the appellants, including the evidence of the CMO, bearing in mind the seriousness and severity of the COVID 19 pandemic, the nature of the COVID-19 virus and the ever-changing variants, the emergence of COVID-19 vaccines that will prevent the spread of the COVID-19 virus and assist in preventing severe illness, hospitalisations and any loss of life of residents, particularly children, the elderly and those persons who were immunocompromised, Rule 8 was plainly a proportionate means of protecting the public health interest in circumstance of a dangerous COVID 19 virus.”

The court held that for those reasons, the dismissed workers’ claim for constitutional relief fails at the threshold and Justice Henry should have rejected it.

Justice Ventose also held that the issue of natural justice does not arise as regards abandonment of office. 

He reasoned that deeming an officer to have resigned from his office is triggered immediately by that officer absenting himself from duty without leave for a continuous period of 10 working days.

“The insertion of the words ‘unless declared otherwise by the Commission’ in Regulation 31 allows the commission to hear the officer, either in writing or orally, who can then explain to the commission why the consequences of Regulation 31 should not apply to him or her.”

He said the vaccine mandate law allows for any person who is deemed to have abandoned his or her office to seek to have the commission subsequently modify the decision. 

“None of the respondents made any requests to the commission for review of their case,” Justice said.

He said that having not availed themselves of the option of seeking from the commission a modification of the communication concerning the abandonment of their offices, the dismissed workers cannot now argue that there is a breach of natural justice.

The court said the mandate was not a directive by the Minister of Health to the police or public service commission.

“The commission in issuing letters reflecting the deemed effect of Regulation 31 namely, that the officers deemed to have resigned the office and that the office becomes vacant and that officer ceases to be an officer, is doing no more than communicating the effect of Regulation 31.

“It was a directive to public and police officers concerning their terms and conditions of employment, the executive was merely laying down additional terms of service for public officers and police officers pursuant to their contracts of employment.” 

Justice Ventose held that there was no control by the Minister of Health or anyone else of any of the functions of either the police or public service commission.

He said Justice Henry was wrong to conclude that the letter issued to the former public sector workers for breaching Regulation 31 or failing to comply with mandate contravened the Constitution.

The court noted that the separation of powers doctrine is a fundamental pillar of constitutional law in the Commonwealth Caribbean.

“The court has made clear that for any delegation of legislative power to be lawful, the legislation must retain effective control over the delegated power by either (1) circumscribing the power, or (2) by prescribing guidelines or policy for the exercise of that power.”

He said that in the context of the COVID-19 pandemic, the Amendment Act was made during an emergency to delegate authority to the Minister of Health to amend certain laws to swiftly respond to the ever-changing and fluid COVID-19 pandemic. 

The Court of Appeal held that Parliament retained control by restricting the application of the Amendments Act to respond to the pandemic, and confining the minister’s power to amend laws for the sole purpose of responding to the pandemic.

“Only a strained reading of the Amendment Acts could one conclude that the legislature gave the Minister of Health the power to amend laws passed by Parliament carte blanche. 

“It would rather be contrary to common sense if such a power could not be delegated in such a time of a public health emergency and serious danger, subject to parliamentary control that was occasioned by the onset of the COVID-19 pandemic. 

“These factors constitute sufficient parliamentary control for the purpose of circumscribing the power delegated to the minister by parliament.”

Justice of Appeal Ventose said Justice Henry was wrong to hold that the amendment was unlawful for contravening the separation of powers doctrine.