Unions, lawyer make call to reinstate unvaccinated ‘front-line workers’

ON THE heels of a measure of success at the High Court in their ongoing challenge to the government’s vaccination mandate, two unions and their lawyer have called for the reinstatement of ‘front line workers’ who lost their jobs not having taken a COVID-19 vaccine.

This call to “turn back” from the decision which affected certain categories of state employees who did not get vaccinated was re-emphasised at a press conference last week Thursday, March 17 at the headquarters of the St Vincent and the Grenadines Teachers Union (SVGTU) at which there were also representatives of the Public Service Union (PSU) and their legal representatives either in person or virtually.

The press conference followed a recent ruling by the High Court that there are live issues which can make an arguable case with a reasonable prospect of success as it relates to a judicial review of decisions by the Minister of Health to make certain rules leading to the unemployment of front-line workers who opted not to be vaccinated.

On the heels of this measure of success wherein six ‘dismissed’ workers will apply for judicial review, representatives of the unions as well as Dominican lawyer, Cara Shillingford have called for the affected workers to be reinstated.

“We have an extremely strong legal team,”said Shillingford who appeared with lawyers, Jomo Thomas, Shirlan ‘Zita’ Barnwell and Grenadian lawyer, Joseph Lynn at the March 17 press conference.

She said she is confident that the legal team is competent and will do “our very best for the people of St Vincent and the Grenadines.”

Responding to the gratitude shown to her by President of the SVGTU, Oswald Robinson, Barnwell said, “This kind of case – public law, constitutional law, judicial review cases – these cases concern human beings and how we treat each other. So these are the kind of cases that I particularly enjoy doing.”

She added, “I would like to reiterate or agree with those speakers who called upon the Government to do what is right. Yes the matter is before the court but it is not too late to turn back on this course that they have taken and reinstate all affected workers because as was rightly said, it’s not just these workers who are affected but it is all of St Vincent and the Grenadines. It is the economy, the children, persons who are seeking public services.”

The claim for judicial review is expected to be filed this week, with the first hearing scheduled for April or May.

In the meanwhile the members of the unions who have lost their jobs because they didn’t take the vaccine are said to be suffering due to their lack of income.

The Public Relations Officer (PRO) of the PSU, Shelly-Ann Alexander-Ross, said, “Our members are really suffering. Those who would have been dismissed are really having a difficult time making ends meet. We will continue to rally around our members….”

“We are not going to leave you hanging. The public service has a commitment or is committed to standing with the members, every one of you, to make sure that justice be served at the end of the day. We hear the cries on a daily basis and we still continue to say that this act was a very evil act,” she stressed. Alexander- Ross said that they hope the case will not be drawn out.

The PSU representative also appealed “to the government, the cabinet ministers and… particularly the prime minister of St Vincent and the Grenadines to reconsider. Do not allow the court to basically make the decision for you. The ball is still in your court to repeal this regulation that would have caused so much pain and suffering to our members, our Vincentians across the board and we’re really appealing to you again “, she said.

“ Correct the historical wrong that would have been done to our members. You still have time to do so. And don’t allow the court to basically tell you what you need to do in terms of correcting this historical wrong.”

Commenting on the recent return to work of unvaccinated sanitation workers who wrongfully relieved of their jobs having been mislabelled as front-line workers, Industrial Relations Officer for the SVGTU, Andrew John said, “I think it is a step maybe in the right direction. I think they should just go right ahead and admit that the whole issue was a mistake and we will reinstate our workers because what is good for one group of course must be good for all and I think it would be really a wise decision on the part of the authorities to just step back from this issue, it’s not looking good on their part.”

President, Oswald Robinson also reinforced the position and advised, “Reinstate everybody. What is good for the goose is good for the gander.”

Justice Esco Henry penned a 48 page decision analysing the issues raised by both sides during the hearing for leave to apply for judicial review.

During this analysis, on the matter of the minister making Rules 8 (1) and 8 (2) of the Public Bodies Special Measures Rules, she noted “Essentially (the applicants’) grouse is that the variation (of the workers contracts of employment) was purportedly made by the minister when he either without or in excess of his authority, allegedly stood in the shoes of the PSC (Public Service Commission) and amended Regulation 31 of the PS Regulations. The applicants submitted that in addition, this effectively amounted to a termination by the PSC and the COP(Commissioner of Police) at the instance of the minister pursuant to sub-rule 8(1) and (2) and cannot be deemed to be a resignation by operation of law under Regulation 31 of the PS Regulations.”

The Statutory Rules and Orders #28 of 2021 (Public Bodies Special Measures Rules) Rule 8 (1) states that an employee who without reasonable excuse fails to comply with the mandate to get vaccinated must not enter the workplace and is to be treated as absent from duty without leave.

Rule 8 (2) states that Regulation 31 of the PS regulations applies to an officer who is absent from duty without leave under sub-rule 1.

Regulation 31 of the PS regulations states that a public officer who is away from duty without leave for a continuous period of 10 days shall be deemed to have resigned his office unless the PSC declares otherwise.

It is noted that the legal team for the Minister of Health, Wellness and the Environment; the PSC; the Attorney General (who was ultimately struck off as a respondent) and the COP – argues that there was and is no termination as the abandonment of a post is not a termination.

The judge noted that the reality is that the sub-rules were not made by the PSC but the minister, and that the subrules direct that Regulation 31 of the PS Regulations “are activated in the circumstances described in those sub-rules introduce additional factors and in my considered opinion provide the basis for further judicial scrutiny on related implications and consequences.”

“To my mind, the scenario before the court,” the Justice said, in summarising part of the applicants’ stance, “invites consideration of whether the Minister exceeded his rule making authority, and if he did so, whether the impugned sub-rules resulted in the termination of the applicant’s employment without the opportunity to be heard; and in any such case whether such termination, if made out, was proportionate and/or affected the applicants’ pension rights and right to property.”

After assessing the arguments, Henry concluded that “the foregoing analysis of the applicants’ and respondents’ respective positions demonstrate forcefully that there are a number of live arguable issues that affords the applicants reasonable prospect of success at trial. They cannot be resolved by a factual or legal finding at this stage by concluding summarily that the broad powers conferred on the CMO (Chief Medical Officer) and the Minister are not judicially reviewable.”

Therefore, she notably decided to grant leave for judicial review of the minister’s decision to make the two subrules – to be scrutinised as it relates to the argued grounds of illegality, excess of authority, breach of natural justice rules, and proportionality.

Based on the same rulings as it relates to arguability of the case concerning a breach of natural justice – the judge allowed review of the PSC’s and COP’s decisions to “terminate” the named applicants employment.