- Workers rest hope in Privy Council appeal
“When I was in prison fighting for my life, I decided to read for a master’s in commercial law because I wanted to be as sharp as possible when assisting in drafting legal documents and legal submissions. I learned that a given word or the turn of a phrase could determine a case involving tens or hundreds of millions of dollars. I wanted to bring that keen eye to my legal work.” — Joseph Ewart Layne, a Grenadian legal luminary and a key figure in the Grenada Revolution.
Vincentian workers dismissed over their refusal to take the ineffective and deadly COVID-19 vaccine have decided to take their quest for justice to the Privy Council. The decision came at a joint press conference of St. Vincent and the Grenadines Teachers’ Union and the Public Service Union on Monday, days after the Court of Appeal overturned Justice Esco Henry’s judgment that found the mandate unconstitutional, unlawful, ultra vires, procedurally improper, and disproportionate.
The decision is crucial because it comes against mounting pressure from official circles and the media for the workers to abandon their quest for justice and redemption, “accept the government’s olive branch, take the road less travelled, and employ the good offices of the Labour Congress and employers” to resolve their grievances.
PM Gonsalves has refused to reinstate the workers. Instead, invoking the Christian values of “compassion and mercy”, he beseeched them to reapply for their jobs with a restoration of “all of their benefits”. However, he said the dismissed workers could kiss their salaries from December 2021 goodbye because the Court of Appeal ruled in his favour. Europeans have a long and chequered his of speaking with a forked tongue.
The workers drew strength for their appeal from Justice of Appeal Gerhart Wallbank’s brilliant dissenting opinion, which the government derisively described as the musing of a “commercial lawyer”, as opposed to Justice of Appeal Eddy Ventose’s scholarly constitutional erudition in the court’s majority opinion. We shall see. I am no legal scholar, but I hope beyond hope that the Privy Council will make short shrift of the ruling, which another legal mind described as “wooden, schematic and mechanical”.
Justice Wallbank argued that the dismissed workers presented enough facts and law for the court to have dismissed the government’s appeal.
The workers’ cause gained accelerated impetus last Sunday when two Grenadian King’s counsel, Dr. Francis Alexis, undoubtedly one of the most renowned constitutional scholars in the Caribbean, said he was convinced that this is a case that the apex court should “review and render an opinion”. Dr Alexis was speaking on Legal Eyes, an online/radio programme that addresses critical legal issues.
Delving into Justice Ventose’s opinion, Dr. Alexis, speaking about Regulation 31, which lays down the law on when and how an employee is deemed to have abandoned her job, said, “Justice Ventose’s statement that Regulation 31 is automatic is very unfortunate. There is nothing automatic about it.”
Ruggles Ferguson KC questioned the majority’s application of the proportionality test, which requires an analysis of the following:
- Did the government’s action pursue a legitimate aim?
- Were the means employed suitable to achieve that aim?
- Is there a minimal or least intrusive means available?
- Is the balance between individual rights and state objectives satisfactory?
While agreeing that the government pursued a legitimate aim and that the means employed were suitable to achieve that aim, KC Ferguson noted that in applying parts three and four of the test, the majority appeared to have disregarded “the purposive or generous approach” the Privy Council said must be used when dealing with matters concerning citizens’ fundamental rights.
Lord Wilberforce first articulated this approach in Fisher, a 1980 decision out of Bermuda. Human rights matters required the Court to take “a generous interpretation avoiding what has been called the ‘austerity of tabulated legalism’, suitable to give individuals the full measure of the fundamental rights and freedoms referred to”.
The principle was again affirmed in 1984 in Attorney-General of The Gambia v. Momodou Jobe. There, Lord Diplock stated that: “[a] constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction”.
At paragraph 92 of the opinion Justice Ventose noted that it was fatal to the workers’ case that no expert scientific evidence was adduced that there were less intrusive means the government could have utilised to achieve its legitimate objectives. To me, this amounted a suspension of basic common sense because among the 13 less intrusive suggestions of the workers was to allow them to perform their duties virtually. One does not need a science guru to conclude that a public employee working from his home could not infect his colleagues at work.
In finding that the Court failed to apply the proportionality test properly, Justice Wallbank was trenchant in reply:
“Speaking for myself, I regard it as self-evident and indisputable, requiring no further establishment, that the impugned termination measure in the present case was draconian, or severe, or drastic, or intrusive, or whatever other similar description might be applied to it. That is because it deprived employees of their employment, their livelihoods for themselves and their dependents, of their financial benefits, socially marginalised them and traumatised them. Not many measures could be more draconian than that life-destroying measure.”
Addressing the vital importance of constitutions, Justice Wallbank reminded his colleagues that “Constitutions have only one function: to protect the residents of a State from abuses of power and excess of authority by those who are supposed to serve them. Constitutions are there to protect the residents of a State including and especially when times are difficult… The magnitude and gravity of ‘COVID’, as perceived by many, including the decision-makers in government, did not, and cannot, trump the application of constitutional and legal safeguards.
“It would set an extremely dangerous precedent if governments could assume they would not be held by the courts to adhere to the demands of a Constitution or the law if the government and the media represent a situation as sufficiently serious to warrant this. If a measure breaches legal or constitutional principles, then the gravity of a situation cannot save it. Constitutions typically contain mechanisms for dealing with emergencies. As we will see, the Constitution of Saint Vincent and the Grenadines is no different. Where, as in this case, such mechanisms have not been used, the full force of constitutional and legal protections continue to apply.”
We fully support Justice Wallbank’s opinion and sincerely hope that the law lords at the Privy Counsel endorse it and help us make good law. But first, the workers must apply for and be granted conditional leave to apply to the apex court.
