Vaccine ruling a path to employee abuse, say unions

Seasoned trade unionist Granville Valentine says Monday’s Supreme Court ruling to deny Digicel Jamaica and Cari-Med Limited employees reprieve against the implementation of mandatory COVID vaccine policies pending trial will result in the wanton abuse of workers’ rights by employers.

Valentine argued, too, that the ruling is likely to trigger a mass exodus of professionals who will not hesitate to transfer their skills to more developed countries that offer greater protection of constitutional rights.

In a Gleaner interview Monday evening, the general secretary of the National Workers’ Union said the ruling has set “a dangerous precedent”, opening the floodgates to companies on the fence about implementing similar policies.

“No management should be able to bring a new policy that was not a part of any negotiation, whether with individual workers or with a union, and that supersedes what entailed and what the present law provides for,” said Valentine, who insisted that the ruling breaches constitutional rights to freedom of choice and labour standards set by the International Labour Organization.

He charged that the ruling has given companies carte blanche to dismiss non-compliant employees without taking into account medical and religious reasons for refusing the COVID-19 vaccine.

St Patrice Ennis, the general secretary of the Union of Technical, Administrative and Supervisory Personnel, has said the ruling should have factored in medical and religious exemptions, pointing to one of the Cari-Med employees who was pregnant at the time the application was filed.

He said, however, that the current status of that employee was unclear.

Ennis, like Valentine, said that the ruling will embolden other companies to implement vaccine policies with trials likely to take some time to complete.

“It will discourage other employees from embarking on such a path in terms of challenging policies. These things are not cheap ... . I expect that persons still will be challenging because individual circumstances vary. The medical issue is sure to come up again,” he said.

Meanwhile, attorney-at-law Gavin Goffe considers the ruling a “big victory” for Cari-Med, which he represented in the matter, and the country.

He countered Valentine’s argument that the ruling is likely to set off wide-scale infringement of employee rights, asserting that the judgment is clear.

“Employers have a duty to protect their workers. They have a duty to protect their business. Workers also have a duty to protect their co-workers. So the notion of abusing anybody is really not sustainable,” Goffe said in a Gleaner interview.

He said the judgment will set a “useful precedent” for other companies.

Five employees of the pharmaceutical company Cari-Med and a senior Digicel data specialist, Doric White, sought injunctions to block the implementation of the policies.

The two rulings mean the employees must comply with COVID vaccination or routine testing at their expense until the substantive hearings are held.

In the first decision, Justice Sonya Wint-Blair ruled against White’s application for an interim injunction to block enforcement of Digicel’s policy that took effect in September.

The judge said Digicel, other employees, and their families would face “negative and far-reaching consequences” if the injunction was granted.

Justice Wint-Blair also said White did not show that he could cover Digicel’s losses if the case does not end in his favour.

White also lost his bid to have his claim of alleged constitutional breaches heard.

Wint-Blair said other remedies exist for any such violations.

In the case of the Cari-Med employees, who argued that their rights were threatened with the roll-out of the policy, Wint-Blair said that there is a “far more substantial risk” of real harm to society, including health threats to Cari-Med’s other employees and especially those with other illnesses.

“The prejudice to the defendant will take the form of exposure to potential liability, immeasurable risk to the health and safety of its employees and its human resources,” she said.

Justice Wint-Blair also said the national aim of safeguarding public health, as mandated by the Disaster Risk Management Act (DRMA), weighed heavily in the decision.

The DRMA is the Government’s primary legislative tool to fight the COVID-19 pandemic.

– Jovan Johnson contributed to this story.