New constitutional conundrum in vaccine court fight

Government lawyers have signalled that remedies under contract law for the breaches triggered by mandatory COVID-19 vaccination policies may not be sufficient to compensate affected employees, raising the possibility for constitutional redress.

On Thursday, representatives from the Attorney General’s Department (AGD) put those arguments before a single judge who has been presiding over all three vaccine-related cases before the Supreme Court.

Justice Sonya Wint-Blair heard arguments on whether constitutional relief is appropriate in a case brought by senior data specialist Doric White against his employer and telecoms firm, Digicel Jamaica.

White, who is unvaccinated, has alleged violations of right to life, freedom of conscience, religion, and respect for private and family life, among others.

The AGD is not a party to the case but is assisting the court on the constitutional issues that have arisen in White’s application for an injunction to halt the implementation of the vaccine policy until the substantive claims of breach of contract and constitutional rights are heard.

The next hearing is scheduled for December 20, when it is anticipated that the judge may hand down a decision on the injunction application.

Under Section 19 (4) of the Constitution’s Charter of Fundamental Rights and Freedoms, the Supreme Court has the discretion to decline to hear a constitutional claim and remit the matter to another tribunal if it is satisfied that adequate means of redress for the breaches alleged are available to the claimant under any other law.

Justice Wint-Blair asked White, Digicel, and the attorney general to make submissions on whether she should exercise that discretion.

The AG was represented by Queen’s Counsel and director of state proceedings, Althea Jarrett, who argued that settled law on the question mostly looked at actions of the State.

However, Jarrett said White’s case was different because it is based in private law and involves a private company and not the State.

She said in exercising its discretion, the court is to determine whether there are adequate remedies in the law of employment contract that can provide redress for the alleged contraventions of White’s rights.

Jarrett argued further that if there is an alternative remedy, the court should also consider whether there is some ‘special feature’ about the case that supports allowing the matter to proceed as a constitutional claim.

Those special features for consideration, she said, included the COVID-19 pandemic, the development of vaccines, vaccine hesitancy, vaccine mandates, and the constitutionality of such mandates.

The AGD representative also asserted that Jamaica’s constitutional court has “firmly” decided that provisions of the charter can be invoked in legal disputes between private parties on the basis that the Constitution is the supreme law of Jamaica.

Meanwhile, Jarrett said at common law, the remedy for a breach of an express term in a contract of employment is damages, usually money.

Losses that do not include money are generally not recoverable from a breach of contract.

The Queen’s Counsel said it may be possible to imply in a contract a term of mutual trust and confidence between an employer and employee, which then puts an obligation on both to not act in a way that destroys that relationship.

Arguably, the AGD said, “there ought to be no impediment to reading into his (White) August 2015 contract of employment an implied term of mutual trust and confidence”.

Preserving a good relationship, Jarrett continued, may require that an employer recognises and respects an employee’s constitutional rights although those rights can be breached.

“Where a charter right is engaged, to justify the engagement the contravener must provide evidence demonstrating that the contravention is demonstrably justified in a free and democratic society,” she said.

Whether the employer acted reasonably will also have to be assessed, but the Attorney General’s Chambers said it was not inconceivable that an employer may act reasonably, yet the action still breached the Constitution.

On that basis, Jarrett said a breach of the employment contract “may not, in fact, provide an adequate alternative remedy for a breach of a charter right after all”.

“It must be a necessary incident of all employment contracts in Jamaica that an employer recognises and respects the charter rights of its employees. This is not only fair and just but is consistent with the constitutional imperative that all persons have a responsibility to uphold and respect the charter rights of others,” she said.

Meanwhile, White contended that the law of contract does not provide redress or compensation for loss of dignity or inconvenience that would arise from not having his salary for an indefinite period.

Something more is needed and that can only come through constitutional redress, argued his attorney Hadrian Christie, who was accompanied by Abbie-Gaye Coulson – both of HRC Law.

It was also argued that the fact that persons exempted from Digicel’s policy for medical reasons do not have to be tested or pay for testing supports the view that White is being punished for his choice.

While both White and a medically exempt person are unvaccinated, White is required to cover the costs of required biweekly tests.

However, Digicel insisted that contract law provides adequate means of redress and that the court should decline White’s request to hear his constitutional claim.

Digicel was represented by Kevin Powell and Sundiata Gibbs of the firm Hylton Powell.

If a court upholds a claim of constitutional breaches, the court has very wide powers to make any orders it feels appropriate. Calculations of financial payouts are also different under constitutional claims than in those for breach of contract.