Cara vs Tony Again

As attorneys for the government of St. Vincent and the Grenadines have declared their intention to appeal the court's recent decision in the COVID-19 vaccine mandate lawsuit, Dominican attorney Cara Shillingford-Marsh is confident that the law is on the side of the people of St. Vincent and the Grenadines (SVG).

High Court Judge Justice Esco Henry has ordered the Government of SVG to pay damages to a group of public sector workers who the court said were unlawfully dismissed for refusing to take the COVID-19 vaccination.

The judgement further states that those police officers, teachers, and public servants should be reimbursed with "full pay and all benefits due and payable to them" from the dates they were deemed to have resigned.

This case arose from legislative measures enacted and implemented by the Minister of Health, Wellness, and the Environment in SVG in response to the COVID-19 pandemic.

Forced to choose between vaccination and employment, over 300 public officers in that country were unemployed following their refusal to take the COVID-19 vaccine mandated by the Ralph Gonzalves government.

Following their dismissal, six individuals, primary-school teachers Shanile Howe and Novita Roberts; Cavet Thomas, a senior customs officer; Alfonzo Lyttle, an assistant supervisor employed with the Customs and Excise Department; Brenton Smith, a station sergeant of police; and Sylvorne Olliver, a corporal of police, filed a mixed claim of judicial review and constitutional law.

Judge says dismissal was unlawful

In her judgment, Justice Esco ruled that the government's decision to terminate their employees' employment due to their refusal to take the COVID-19 vaccine was unlawful, unconstitutional, ultra vires (beyond the lawful power of the government), disproportionate and tainted by procedural impropriety.

She said that introducing measures to say that public officers automatically resigned if they did not show up to work because they were not vaccinated, without affording them an opportunity to be heard, additionally constitutes "a breach of natural justice".

Speaking on the ruling, the lead counsel for the claimants, Shillingford-Marsh, believes that Justice Henry delivered "a solid and well-reasoned decision", which shows that the court is the protector of justice.

She averred that the ruling vindicates hundreds of Vincentian employees who exercised their fundamental human right to reject the COVID-19 vaccine, describing the mandate imposed by the SVG government as draconian.

"They have suffered tremendously over the past 15 months. Many of the claimants have mortgages, children, medical expenses and other financial commitments which they could not meet due to their dismissal. Moreover, they did not create the Covid-19 virus. It is unjust, unfair, draconian and inhuman for any government to destroy the lives of its employees because of a virus they did not create," she added.

She further stated that the ruling sends a strong message to regional governments "that a pandemic does not justify the creation of unlawful and disproportionate rules".

Shillingford-Marsh insisted that public servants, police officers and teachers must remain insulated from political interference. As such, the government of the day cannot simply impose a mandate that effectively terminates these protected employees' employment.

In response to the judgement, the Prime Minister of SVG, Dr Gonsalves, is optimistic that the ruling may likely be overturned in the Court of Appeal.

"We have given instructions to them to appeal," he disclosed. "They orally indicated that they would appeal. However, the government is satisfied that our actions were lawful, we were so advised, and this matter is too important for us to rely on one judge's judgment in the first instance... let's hear what the Court of Appeal thinks."

He concluded, "Senior Counsel has advised me in this matter, and I have accepted that advice, that there is a likelihood this decision will be overturned at the Court of Appeal, and I am satisfied from the standpoint of our actions, we saved lives and livelihoods."

Tony to Appeal

Lead counsel for the government, Anthony Astaphan (SC), said his team is obliged to review the reason by the judge and advise the government whether there is any merit to an appeal.

"We have advised the government that we believe there is considerable merit in an appeal. We have also advised them that in the public interest, an appeal is required for the very simple reason that the government needs to know and have the guidance of a higher court on what should be done when a government is confronted with a crisis and an infectious disease that kills and hospitalized citizens," he said.

In response to the announced intention to appeal the ruling, Shillingford-Marsh deemed it unfortunate.

"Having regard to the fact hundreds of Vincentians have suffered greatly over the past 15 months simply because of their desire to protect their fundamental human rights, I hope that the government would reconsider its decision to appeal. Should they proceed with an appeal, however, we are confident that we will be successful since the judge's decision was extremely well reasoned."

In addition to granting damages, the judge also ruled that all claimants continued to hold the public offices they had been appointed and held at the relevant times. Accordingly, they remain entitled to all their full pay and benefits, including pensions, due and payable.

The claimants have been asked to file an assessment of the damages they believe have been caused to them before June 14, 2023. According to the ruling, the Crown (State) will be responsible for paying each worker for damages regarding several constitutional breaches with interest at a statutory rate of 6% per annum. The government must also pay the workers for the costs incurred while filing the case before the court. For that, the workers have been given 45 days or a date on or before April 28, 2023, to assess the costs.

The trial began on November 29 2022, was reserved on December 1, 2022, and was finally handed down on March 13, 2023.

Shillingford-March, Jomo Thomas and Shirlan Barnwell represented the workers, while SC Astaphan, Solicitor General Karen Duncan, Cerepha Harper Joseph and Grahame Bollers represented the state.