Dissenting judge says vaccine mandate was ‘draconian’

The justice of appeal who disagreed with his two other colleagues and said he would rule against the government in the “Vaccine Mandate Case” described as “draconian” the ultimatum given by public sector workers in 2021.

In a 2-1 decision handed down on Wednesday, justices of Appeal Eddy Ventose and Paul Webster ruled in favour of the government while Justice of Appeal Gerhard Wallbank dissented.

Justice Wallbank said he would uphold the March 13, 2023 ruling of then High Court judge Justice Esco Henry (who is now a justice of appeal) that the mandate breached natural justice, contravened the Constitution, was unlawful, procedurally improper, and void.

Hundreds of public sector workers lost their jobs, their pensions and gratuity when they did not take a COVID-19 jab in late 2021.

The government barred unvaccinated workers from attending work and then after 10 days, deemed them to have abandoned the same jobs they were prevented from attending.

The majority decision of the appeal court means that the government was right to do so and can force people to take other medicines in the future, at the risk of losing their jobs.

However, in his dissent, Justice Wallbank said abandonment of employment is a voluntary relinquishment of the employment through non-user with the actual or imputed intention on the part of the office holder to abandon and relinquish that office.

He said the combined effect of incorporating the new definition of abandonment into the vaccine mandate was to redefine what had been considered “abandonment of office”.

“It was not simply the case of the Minister merely repeating what was already the law. The deeming provision was not ‘mere surplusage’,” he said, expressing a contrary view to Justice Ventose, who wrote and delivered the majority verdict with which Justice Webster agreed.

“It was a new measure that changed the meaning of a legal concept,” Wallbank said.

He said that in laying down that an officer who has not taken the vaccine and who has not presented proof of vaccination ‘is to be treated as being absent from duty without leave’, the vaccine mandate had the effect of disapplying the common law criteria for abandonment of office, including the requirement that absence should be voluntary.

Justice Wallbank said the mandate had the effect of imposing a completely different set of artificial criteria for resignation from employment through abandonment and overrides the well and long-established law as to what constitutes abandonment of employment, as a form of resignation.

He further said that the rule under the mandate that prohibited unvaccinated workers from entering the workplace does not automatically entail absence from duty.

“Whether or not such an officer indeed went absent from duty without leave is a question of fact within the context of the particular case,” he said.

The dissenting judge said the evidence in the Vaccine Mandate Case showed that although restricted from entering the workplace, the workers who would be dismissed continued to perform their duties until they received their letters of termination.

“It was not the failure to present themselves for work, but non-vaccination, that earned the respondents their termination letters.”

Further contradicting Justices Ventose and Webster, Justice Wallbank said the rule that spoke to the abandonment of office would not “automatically” apply to unvaccinated public officers had it not been inserted in the mandate law, because mere non-vaccination and inability to show proof of vaccination, and prohibition to enter the workplace, do not of themselves equate to absence from duty without leave.

He further said the application of SR&O 28, the law passed by Cabinet that brought the mandate into effect, did not offend against the right to a fair hearing within a reasonable time pursuant to section 8(8) of the Constitution.

“That is because, in taking the entire procedure of the application of SR&O 28 as a whole, the respondents did not avail themselves of the entirety of the in-built opportunity to be heard.”

Justice Wallbank said the respondents (the dismissed workers) were not precluded from making representations to the Public Service Commissions, which could have changed the overall result after they received their termination letters.

“However, the Public and Police Service Commissions’ decision-making process was flawed in that they prejudged the factual issue of whether the respondents, in each individual case, had a reasonable excuse for non-vaccination against them, without affording the respondents an opportunity to be heard.”

He said those commissions simply assumed from the fact of non-vaccination that the respondents had no reasonable excuse.

“It was not open to them to state unconditionally and definitively, as they did, that the employees had no reasonable excuse when those bodies did not know and could not have known that without conducting an inquiry into the fact-specific question and without affording the respondents an opportunity to be heard before pronouncing their decision,” Justice Wallbank said.

“This was inherently a breach of fundamental principles of natural justice and rendered the decisions of the Public and Police Service Commissions void and of no effect.”

As regards pension rights, Justice Wallbank said there was no scope for the High or the Court of Appeal to consider the proportionality of the measure introduced by mandate divorced from the protection of a fundamental right.

“The four-step proportionality test cannot be used without reference to a fundamental right,” he held, adding that pension rights are a form of personal property protected under section 6 of the Constitution.

“Loss of the respondents’ pension rights was a form of deprivation of property without compensation, triggering the court’s powers of intervention because a constitutionally protected right is arguably being infringed,” he said.

The justice of appeal held that the uncontradicted evidence is that the dismissed workers’ deemed resignation deprived them of their accrued entitlement to be paid a public service pension, i.e. that their deemed resignations cancelled their accrued pension entitlements.

“That evidence of the respondents could have been contradicted by the appellants with reference to factual matters (i.e. evidence) and/or the law on pensions, but it was not. The Court therefore has sufficient jurisdiction to consider the proportionality of the impugned termination measure in so far as it affected those respondents who had accrued pension rights,” he said, citing the case of the Three NDP Teacher, Elvis Daniel, Addision “Bash” Thomas and Kenroy Johnson.

Further, Wallbank said that the mandate, that is, giving public and police service employees an ultimatum that if they did not get vaccinated, they would lose their jobs, was “draconian”.

“It deprived employees of their employment, of their livelihoods for themselves and their dependents, of their financial benefits, socially marginalised them and traumatised them. There were less intrusive measures which could have been used without unacceptably compromising the objective of SR&O 28.”

He said Section 6 of the Constitution permits limitation of property rights but draws the line that if property rights are removed, then adequate compensation within a reasonable time must be paid.

“That line is absolute and cannot be crossed,” the judge said, adding, “There is no evidence the Government intended to compensate any of those terminated for loss of their pension rights.”

He said the mandate therefore “crossed the line drawn by section 6 of the Constitution, was too intrusive, and consequently was inherently disproportionate”.

He further said that the vaccine mandate law passed by Cabinet (SR&O 28) already contained an adequate solution to achieve the stated legislative purpose.

“Two such measures were already included in SR&O 28 itself — prohibition from entering the workplace and disciplinary action in misconduct for failure to comply with that prohibition.

“The addition of the impugned termination measure exceeded what was necessary and did not strike a fair balance between the rights of the individual and the interests of the community. For all these reasons, the decisions made by the Public and Police Service Commissions to treat the respondents as having resigned their positions pursuant to SR&O 28 were void and of no effect,” he said.

The SVGTU, Public Service Union and the Police Welfare Association sponsored the 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 respondents.

The Minister of Health and the Environment, Public Service Commission, Commissioner of Police, Attorney General, and Police Service Commission were the appellants.

Following Wednesday’s decision, the lawyers for the public sector unions advised them to appeal to the London-based Privy Council, the nation’s highest court.

They said that with Justice Wallbank’s dissenting opinion and Justice Henry now a Court of Appeal judge, two justices of appeal have ruled in favour of the dismissed workers and two against.

The lawyer said that Justice Wallbank’s dissent could form the cornerstone of a Privy Council appeal.