- Court of Appeal reserves judgement in COVID-19 vaccine case
The Court of Appeal has reserved its decision in the review of the High Court ruling that the St. Vincent and the Grenadines government acted illegally in 2021 when it dismissed hundreds of public sector workers who did not obey its order to take COVID-19 vaccine.
“… this appeal is a matter of considerable public importance. It is not your usual constitutional case,” Senior Counsel Anthony Astaphan told the panel made up of Justices of Appeal Eddy Ventose, Gerhard Wallbank and Paul Webster, during a virtual sitting of the court in Antigua.
The government argued that High Court judge, Justice Esco Henry, erred when she ruled in March 2023 that the government’s decision to fire the unvaccinated workers breached natural justice, contravened the Constitution and was unlawful, procedurally improper and void.
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”.
In response to the pandemic, the government passed Statutory Rule & Order (SR&O) No. 28 of 2021, a law approved by the Cabinet.
Regulation 8(1) of the SR&O, commonly called the vaccine mandate law, provides that an unvaccinated employee must not enter the workplace and is to be treated as being absent from duty without leave.
But attorney, Cara Shillingford-Marsh asked the Court of Appeal to uphold the judgment saying overturning it would allow the government to do as it wishes to the public service.
She said 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.
“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 as she defended the judgment of the High Court in favour of the dismissed workers.
The Public Service Union (PSU), the St. Vincent and the Grenadines Teachers’ Union (SVGTU) and the Police Welfare Association (PWA) have sponsored the lawsuit, which was brought in the names of “dismissed” public sector workers, Shanile Howe, Novita Robert, Cavet Thomas, Alfonzo Lyttle, Brenton Smith, Sylvorne Olliver, Shefflorn Ballantyne, Travis Cumberbatch and Rohan Giles.
The appellants are the Minister of Health and the Environment, the Public Service Commission, the Commissioner of Police, the Attorney General and the Police Service Commission.
Astaphan noted that the submission by the public servants’ legal team that Regulation 8 was disproportionate and, therefore unconstitutional because the minister of health did not consider any less intrusive measures.
He, however, said there was no medical evidence despite Justice Henry’s findings, that lesser measures would have had an impact in controlling the spread of COVID-19 and the deaths that resulted from the illness.
“In fact, 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, and infections and deaths in St. Vincent and the Grenadines,” Astaphan told the court.
He 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”.
The lawyer noted that Justice Henry’s judgement showed that the public servants did not challenge the proportionality of the vaccine mandate, but the government’s imposition of regulation 8.
Referring to a case from New Zealand, Astaphan said the only possible way Justice Henry could have made a finding of disproportionality about the mandate was if there was medical evidence to show that the lesser measures would have been as effective in curbing the spread and preventing deaths from COVID-19 in St. Vincent and the Grenadines.
He said that Keizer-Beache made it clear that based on high levels of vaccine hesitancy and the low rate of vaccination in the public service, the public service and the public faced “a very serious threat from COVID and therefore, it was her opinion that the public officers should not be allowed in the workplace unless they were vaccinated or complied with the provisions of the exemption clauses under the special measures”.
Astaphan argued that Justice Henry made findings that were “wholly unsupported by evidence on the issue of proportionality”.
He said that the public servants were arguing before the court that the objectives of the vaccine mandate would have been achieved by alternative modes of work for public officers such as working online.
“That was tried and failed,” Astaphan said, adding that giving unvaccinated people the option of taking regular tests and wearing masks, as the public servants were claiming, was done but had also “failed to stop the spread”.
Shillingford-Marsh told the Court of Appeal that Prime Minister Dr. Ralph Gonsalves is now offering employment on a case-by-case and contractual basis to the workers who lost their jobs under the mandate.
She said this means that the workers are no longer public servants nor do they have public service protection.
“This cannot be permitted to stand by the courts because it makes nonsense of our Constitution and it erodes and erases a very important part of the Constitution, which is aimed at protecting the public service,” Shillingford-Marsh said.
She said that the Privy Council, the country’s highest court, has given guidance on the purpose of the Public Service Commission.
“And the purpose of the Public Service Commission is to insulate public servants from political interference, meaning that the public service is supposed to be made up of independent individuals who perform their duties in the best interest of the country”.
She said public servants should not owe political allegiance to the particular person who appointed them to office.
“It is recognised that if the public service were to be filled with political appointees, people who are simply loyal to the government that appoints them or the government who can easily get rid of them, then the country would not function properly,” Shillingford-Marsh said, adding that in such a situation, “you will not have a meritocracy; you would have a country run simply on the basis of nepotism.
“Persons would be appointed to positions, would remain in positions because of which political party they support. And it is precisely because of that, that we have commissions like the Police Service Commission, the Public Service Commission in order to insulate public servants from political interference,.”
Shillingford-Marsh told the court that the legal challenge to the vaccine mandate law was because it dictates to the Police Service Commission and the Public Service Commission the penalties for not showing up at work.
“If it is that there was a vaccine mandate, and the individuals did not get vaccinated and showed up for work or did not show up for work, then that could have been addressed as a disciplinary issue.”
She told the court that the relevant section of the Public Service Commission regulations would have come into play.
“A minister of government cannot dictate to the Police Service Commission and the Public Service Commission, what consequence there should be for the actions of a particular public officer or police officer,” Shillingford-Marsh argued, adding that the case concerns employment law issues, constitutional law, administrative law and human rights issues.
“The respondents are 271 public and police officers, including teachers. They are not to be blamed for the COVID 19 virus; they did not create the COVID-19 virus. They are simply ordinary people who enjoyed ordinary lives prior to the impugned legislation being passed,” she said, adding that many of the dismissed workers had dedicated years of service, some of them for over 30 years.
