Laid off unvaccinated frontline workers to get day in court

The government’s mandate requiring vaccination of front-line workers will not see scrutiny by the court, but the rule deeming unvaccinated front-line workers as absent from duty without leave will.

This was included in the rulings of Justice Esco Henry who announced her deliberations on the application for leave to seek judicial review of actions regarding Public Health (Public Bodies Special Measures) Rules 2021, also known as Statutory Rules and Orders No 28 of 2021.

The applicants were: the St Vincent and the Grenadines Teachers’ Union(SVGTU), the Public Service Union(PSU), the Police Welfare Association(PWA), teacher Shanile Howe, teacher Novita Roberts, customs officer Cavet Thomas, customs officer Alfonzo Lyttle, former station sergeant Brenton Smith, and former police officer Sylvorne Olliver.

However, yesterday the judge ruled that the three Unions are not competent to bring a suit in their own names in these proceedings. They were consequently struck out as parties to the proceedings: namely the application to seek judicial review.

So too was the Attorney General, who appeared as a respondent, struck out as a party to the proceedings. The remaining respondents were: the Minister of Health, the Commissioner of Police(COP) and the Public Service Commission(PSC).

Henry refused the applicants’ leave to apply for judicial review of the decision of the Minister of Health, St Clair Prince to make rule 5(1) of the Public Health Rules 2021. This rule states: “subject to rule seven every employee specified in the schedule must be vaccinated against the coronavirus-disease 2019.”

However, the judge ruled that the applicants will be allowed to apply for judicial review of the Minister’s decision to make rule 8(1) and (2) of SR&O No 28. However, this will be limited to illegality, procedural impropriety and proportionality grounds laid out in their Notice of Application before the court.

Rule 8(1) of the SR&O No 28 stipulates that “an employee who without reasonable excuse fails to comply with rule 4 or 5 must not enter the workplace and is to be treated as being absent from duty without leave.”

Rule 8(2) speaks to the abandonment of office regulation in the Public Service Commission(PSC) Regulations applying to a public officer who is absent from duty without leave under sub rule (1).

The applicants’ claim for leave to apply for judicial review of the PSC’s and COP’s decision to terminate the respective applicants’ employment was also granted.

The next step of filing a claim for judicial review should be taken with 14 days of the date of March 10, and the first hearing is to be scheduled in April or May 2022 on a date convenient to the parties involved.

Lastly, it was decided that each party to the matter of leave to apply for judicial review shall bear his, her or its own costs.
The lawyers for the applicants for the PSU and SVGTU were Cara Shillingford (Dominica); Jomo Thomas and Shirlan Barnwell. Counsel Israel Bruce appeared for the PWA.

Senior Counsel, Anthony Astaphan (Dominica); Solicitor General, Karen Duncan; counsel Cerepha Harper-Joseph and counsel Kezron Walters appeared for the Minister of Health, the COP and the AG. Grahame Bollers represented the PSC.