Lawyers representing the workers who lost their jobs in 2021 because of the COVID-19 vaccine mandate have advised, yet again, that workers return to their posts.
The advice came again on Wednesday after the Court of Appeal allowed the government’s appeal in the case, essentially ruling that the government’s actions were lawful.
The legal team for the trade unions that sponsored the lawsuit on behalf of the workers advised the unions to appeal to the London-based Privy Council, St. Vincent and the Grenadines’ highest court.
However, they said that the workers should return to their posts as doing so could mitigate their damages in the event of a Privy Council victory.
After the announcement of the judgment on Wednesday, the government issued a press release in which Prime Minister Ralph Gonsalves made yet another appeal for the workers to return to their posts.
He said they would not lose any of the benefits accrued before the mandate came into effect.
Dominican lawyer Cara Shillingford-Marsh who presented the oral arguments on behalf of the dismissed workers, told a forum organised by the St. Vincent and the Grenadines Teachers’ Union, on Wednesday, that returning to work is something separate from pursuing the appeal.
“So, it is possible, and it is quite fine, it’s quite OK to return to work and pursue your appeal to get compensated for the three years that you were made to suffer,” Shillingford-Marsh said.
“So, I believe that the affected persons can reasonably return to the workplace and keep us updated, let us know as to whether there are any disadvantages that you face,” the lawyer said.
“Anyone who is refused employment or anyone who is given a position which is lower in terms of salary or in terms of level than the position they held prior to being dismissed, all of these things are things that we should be informed of because they would have other legal ramifications.
“So if any person is confused or is unsure as to whether returning to work would affect the appeal, the answer is no. You can return to work and still pursue your appeal to be compensated for the harm that you have suffered.”
Meanwhile, Vincentian Jomo Thomas, another member of the legal team, noted that it was not the first statement by the Prime Minister’s Office that talked about the workers returning to their posts with full benefits.
“… but it seems when it comes to the practicality of it, they’re speaking with forked tongues that when people make the application, they are essentially being told, all right, you return effective March 1, without any mention at all about the time which they had before they took the decision back in November of 2021 to not take the vaccine.”
He said the point that Shillingford-Marsh had made about people keeping a good record of happens when they return is of fundamental importance.
Thomas told the online forum that that question had been raised previously at a meeting at the Kingstown Preparatory School, where the legal team spoke to mitigating damages.
“If you have an invitation to return with full benefits and pursue your case, if you choose not to do that, then they may want to play hardball and say, ‘All right, we told you to come back six months ago. You didn’t come back until now … so we are going to, in making the calculation as to what damages you suffered, you had a chance to mitigate, you did not mitigate.’
“And consequently, they may want to argue that you may not get paid for the time when you’re out, when you could have properly come back without losing any benefit.”
Responding to a question, Shillingford-Marsh said her view is that the workers should be reinstated, noting that if they are re-applying for work the government has a discretion on whether to hire.
“However, if it is that the government of St. Vincent isn’t willing to simply reinstate and if it is that they have set up a particular procedure, although we may not agree that this is how it should be done, our advice to you is, follow the procedure,” Shillingford-Marsh said.
“If it means that the procedure entails submitting an application, then fine, follow the procedure, because it is part of mitigating your losses and it will not affect your case.”
She noted that the PM’s Officer had stated that the affected workers should indicate to the chief personnel officer that they wish to return to work.
“So, whenever you are communicating on this matter, I would suggest that you communicate in writing in terms of indicating that you wish to return to work. Preferably, have some acknowledgement; have someone sign as receiving the letter so that we could have a record.
“… we don’t want it to be that … when we become successful at the end of this case and the issue is how do we calculate the amount which should be paid to the person, we don’t want the government to say that well, we told them to come back to work in February of 2025, and therefore only pay them for what is due up to February of 2025,” Shillingford-Marsh said.
“So, we don’t want you to fall into that trap. Let us continue litigating the matter. Let us proceed with the Privy Council. But in order to mitigate the situation, return to work without taking the vaccine, because nobody should be able to force you to take a vaccine, return to work, and let’s focus on mitigating the loss.”
However, Grenadian lawyer Joseph Ewart Layne, another member of the legal team, suggested that the workers avoid using the term “reapply”.
“… ‘responding to the invitation of the Prime Minister’ maybe that should be the language. And maybe we can even do a template that folks could use because that’s what he said, come back,” Layne said.
Well, workers go back to your jobs. Most are against you, so cut your loses and return to work. Don’t continue to suffer waiting for a judgement on appeal. There is no evil that does not come for better.