Brakes on injunction amid squabble over AIC vax backtrack

What was shaping up to be a precedent-setting court battle between four employees of AIC Jamaica Limited and their bosses over COVID-19 vaccine-or-test policy fizzled last Friday when the workers withdrew their application for the court to grant an injunction against the company’s mandate.

“Since the defendant has changed its vaccination policy, we now wish to withdraw our application for an injunction, as there is no more need for an injunction,” the claimants said in court documents filed in the Supreme Court.

Attorney-at-law Conrad George of the law firm Hart Muirhead Fatta, who is representing AIC, argued that the case brought by the claimants was “misconceived” and that was the reason why they asked that the injunction be withdrawn.

However, Hadrian Christie, attorney-at-law representing the claimants, told The Gleaner on Sunday that AIC changed its policy in the middle of the court matter, causing the application for injunction to be no longer relevant.

But George countered, saying that the AIC adopted the Private Sector Organisation of Jamaica/Joint Confederation of Trade Unions protocols long before the workers applied to the court for an injunction against the company.

He said what AIC did was to try to find tasks, within job descriptions, for the workers who had not been inoculated so that they would not come into contact with other people.

Separated from vaccinated staff

George said that the company did not want to dismiss them, pointing out that the “protocol and the law require they do whatever they can to find an alternative way around and that’s precisely what they did – they separated them from the vaccinated staff”.

He noted that it was that action taken by the AIC that “upset them” and triggered the move by the workers to apply for an injunction against the company.

Christie, however, maintained that AIC adjusted its vaccinate-or-test policy after the claimants filed court documents.

“I have a written letter in the middle of the court proceedings indicating that the company is now replacing its old policy,” he said.

The letter dated November 2, 2021, from AIC’s lawyers, a copy of which was shared with The Gleaner, stated: “We confirm that the company has adopted as its corporate policy the protocol published jointly by the Private Sector Organisation of Jamaica, the Jamaica Confederation of Trade Unions, the Jamaica Chamber of Commerce, the Jamaica Manufacturers and Exporters Association, and the Jamaica Employers’ Federation titled ‘COVID-19 Measures in the Workplace – A Protocol Advisory for Business in lieu of any previous relevant policies’ ...”.

Court documents filed by director of AIC, Wayne Chen, indicated that in light of the refusal of some members of staff to be vaccinated, Shamera Khan, the company’s managing director, issued a directive that unvaccinated workers would be required to produce a weekly negative COVID-19 PCR test, at their own expense, before being allowed to work.

Khan also said that pay would be deducted from salary for days missed. Further, she directed that all employees be vaccinated by September 27, 2021, after a vaccination blitz at the work complex.

In his affidavit, Chen said that despite the issuing of the directives, material aspects have never been implemented.

“This is so because AIC took legal advice on aspects of the policy from Mr Conrad George of Hart Muirhead Fatta, and was advised against the docking of pay and the requiring of employees to provide COVID-19 tests at their own expense,” Chen said.

Peter Walters, Richard Davidson, Earl Harris, and Latisha Salmon, the claimants in the court battle, said they were informed by their attorney that AIC Jamaica had replaced its previous policy, which required them to be vaccinated or tested for COVID-19 at their expense.

“It is our understanding that the defendant has now implemented a joint advisory note prepared by the Jamaica Employers Federation and others, which now requires the defendant to conduct a COVID-19 risk assessment and have consultations before imposing/enforcing policy to manage the COVID-19 risk,” the affidavit stated.

The claimants said they were never informed of this change in policy by AIC Jamaica before filing the lawsuit.

The claimants said they were displeased with how the matter was handled by their employer, which made them feel “less than human and without any rights based on how they went about their now-withdrawn vaccination policy”.

“We feel hurt, offended, and disheartened with what happened, and we hope that our employers will see it fit to sit with us and have discussion to make amends,” they concluded.

The court is expected to hand down a decision on costs for the defendant or claimants tomorrow.

editorial@gleanerjm.com