Justice of Appeal Gerhard Wallbank, who dissented on the St. Vincent government appeal of the so-called vaccine mandate of 2021, described the government’s action as “draconian.”
Justice Wallbank stated that abandonment of employment is a voluntary relinquishment of the employment through non-user with the actual or imputed intention on the part of the officeholder to abandon and relinquish that office.
“The combined effect incorporating Regulation 31 by way of Rule 8(2) and the deeming provision in Rule 8(1) was to redefine what had been considered ‘abandonment of office’. It was not simply the case of the Minister merely repeating what was already the law. The deeming provision was not ‘mere surplusage’; neither was the inclusion of reference to Regulation 31 in Rule 8(2). It was a new measure that changed the meaning of a legal concept. In laying down that an officer who has not taken the vaccine and who has not presented proof of vaccination ‘is to be treated as being absent from duty without leave’, Rule 8(1) had the effect of disapplying the common law criteria for abandonment of office, including the requirement that absence should be voluntary. Rule 8(1) has the effect of imposing a completely different set of artificial criteria for resignation from employment through abandonment and overrides the well and long-established law as to what constitutes abandonment of employment, as a form of resignation”.
Moreover, Justice Wallbank said the prohibition in Rule 8(1) from entering the workplace does not automatically entail absence from duty.
“Whether or not such an officer indeed went absent from duty without leave is a question of fact within the context of the particular case. In this case, the evidence showed that although restricted from entering the workplace, the respondents continued to perform their duties until they received their letters of termination. It was not the failure to present themselves for work, but non-vaccination, that earned the respondents their termination letters. Similarly, Regulation 31 would not ‘automatically’ apply to unvaccinated public officers to whom the first part of Rule 8(1) applied had it not been inserted in Rule 8(2), because mere non-vaccination and inability to show proof of vaccination and prohibition to enter the workplace, do not of themselves equate to absence from duty without leave”.
The Justice stated that application of SR&O 28 did not offend against the right to a fair hearing within a reasonable time pursuant to section 8(8) of the Constitution. That’s because the respondents didn’t fully use the built-in chance to be heard during the whole process of applying SR&O 28. The respondents were not precluded from making representations to the Commissions, which could have changed the overall result after they received their termination letters.
“However, the Public and Police Service Commissions’ decision-making process was flawed in that they prejudged the factual issue of whether the respondents, in each individual case, had a reasonable excuse for non-vaccination against them, without affording the respondents an opportunity to be heard. Those bodies simply assumed from the fact of non-vaccination that the respondents had no reasonable excuse. It was not open to them to state unconditionally and definitively, as they did, that the employees had no reasonable excuse when those bodies did not know and could not have known that without conducting an inquiry into the fact-specific question and without affording the respondents an opportunity to be heard before pronouncing their decision. This was inherently a breach of fundamental principles of natural justice and rendered the decisions of the Public and Police Service Commissions void and of no effect”.
The Justice further stated that, there is no scope for the court below, or this Court, to consider the proportionality of the measure introduced by Rule 8 of SR&O 28 divorced from the protection of a fundamental right. The four-step proportionality test canno be used without reference to a fundamental right.
“Pension rights are a form of personal property protected under section 6 of the Constitution. Loss of the respondents’ pension rights was a form of deprivation of property without compensation, triggering the court’s powers of intervention because a constitutionally protected right is arguably being infringed. The uncontradicted evidence is that the respondents’ deemed resignation deprived them of their accrued entitlement to be paid a public service pension, that their deemed resignations cancelled their accrued pension entitlements. That evidence of the respondents could have been contradicted by the appellants with reference to factual matters and/or the law on pensions, but it was not. The Court therefore has sufficient jurisdiction to consider the proportionality of the impugned termination measure in so far as it affected those respondents who had accrued pension rights. The impugned termination measure in the present case giving public and police service employees an ultimatum that if they did not get vaccinated, they would lose their jobs, was draconian. It deprived employees of their employment, of their livelihoods for themselves and their dependents, of their financial benefits, socially marginalised them and traumatised them. There were less intrusive measures which could have been used without unacceptably compromising the objective of SR&O 28”.
Justice Wallbank said Section 6 of the Constitution permits limitation of property rights but draws the line that if property rights are removed, then adequate compensation within a reasonable time must be paid. That line is absolute and cannot be crossed.
“There is no evidence the Government intended to compensate any of those terminated for loss of their pension rights. The impugned termination measure therefore crossed the line drawn by section 6 of the Constitution, was too intrusive, and consequently was inherently disproportionate. Additionally, SR&O 28 already contained an adequate solution to achieve the stated legislative purpose. Two such measures were already included in SR&O 28 itself – prohibition from entering the workplace and disciplinary action in misconduct for failure to comply with that prohibition”.
“The addition of the impugned termination measure exceeded what was necessary and did not strike a fair balance between the rights of the individual and the interests of the community. For all these reasons, the decisions made by the Public and Police Service Commissions to treat the respondents as having resigned their positions pursuant to SR&O 28 were void and of no effect”, Wallbank stated.
