Letters & Opinion

Can I be fired for not taking the vaccine?

By Peter A. H. Marshall, Attorney at Law

IN my opinion; yes.
That is the short answer. The long answer is, however, a bit more complicated.

The Law

The primary piece of legislation which must be considered in the context of workplace relations in Saint Lucia, is the Labour Act Cap 16.04 of the Revised Laws of Saint Lucia (“the Act”), commonly referred to as the Labour Code.

There are two types of claims that can be brought by an employee when they have been dismissed by an employer in circumstances where they believe they should not have been. If you are terminated for not taking the Covid-19 vaccine (“the vaccine”), you would have to satisfy the Labour Tribunal and/or the Court that you were either (1) unfairly dismissed and/or (2) wrongfully dismissed. In this article I will refer to either of the relevant adjudicating bodies as “the Court” for simplicity.

Before we examine whether a claimant could successfully make a claim for unfair dismissal or for wrongful dismissal, it is important to contextualise the interplay between employers and employees as contemplated by the Act.

The Act imposes duties on employers to safeguard, among other things, the health and safety of the working environment:

“General duties of employers
257.— (1) An employer shall ensure that —
(a) a safe, sound, healthy and secure working environment is provided and maintained as far as is reasonably practicable;
257 (2) In addition to the duties imposed by subsection (1), an employer shall — (a) provide information, instruction and supervision to employees to protect the safety and health of those employees;
(h) take reasonable precaution for the protection of the general public who comes (sic) into contact with the workplace…”

Employers are not merely encouraged to protect the health and safety of their staff and customers; they are required by law to do so. This can include instituting a vaccine policy at their workplace in order to maintain a safe, sound and healthy working environment. With that in mind, let us see what criteria need be satisfied to successfully bring a claim for unfair and/or wrongful dismissal. In doing so, we will uncover the reasons why, in my opinion, an employee can be validly terminated for refusing to take the vaccine.

Unfair Dismissal

Section 131 (1) (a) to (l) of the Labour Code outlines certain exhaustive criteria which, if they formed the basis of a dismissal by an employer, would constitute unfair dismissal. It includes, but is not limited to, an employee’s race, sex, religion, colour, ethnic origin, a female employee’s maternity leave, an employee’s absence from work due to compulsory military service, and even an employee’s spent conviction for a crime. If an employer terminates the employee for any of the reasons indicated in Section 131 (1) such a termination is unfair and the employee would be entitled to redress. However, Section 131 (1) does not appear to contain any criteria in which the refusal to take a vaccine would readily fit by any metric of interpretation. Accordingly, a dismissal on that basis would not likely give rise to a successful claim for Unfair Dismissal.

Perhaps the closest criterion is in paragraph (h) which stipulates that it would be unfair to terminate an employee for:
“an employee’s exercise or proposed exercise of the right to remove himself or herself from a work situation which he or she reasonably believes presents an imminent or serious danger to life, health or safety”

An employee may argue that a mandatory vaccine policy presents an imminent or serious danger to their life, health and safety. This line of argument has not been tested in Court. However, absent that employee having a medical condition which makes them particularly susceptible to the vaccine, the Court would have to find that the belief that the Covid-19 vaccine, in and of itself, is an imminent or serious danger to life, health and safety of a healthy person, is a reasonable belief. I do not think that the weight of the medical evidence would support such a conclusion. As such, I am of the view that, generally, an employee would not be able to bring a successful claim for unfair dismissal if dismissed for refusing to take the vaccine.

So, could that employee bring a successful action for wrongful dismissal?

Wrongful Dismissal

Unlike Unfair Dismissal, Wrongful Dismissal is not defined by any legislation but arises where an employee is dismissed, under a contract terminable by notice, without being given the requisite contractual notice or the statutory minimum notice.

The High Court in Alicia Sardine Browne v RBTT Bank Caribbean Limited, described wrongful dismissal as involving a breach of the termination clause of an employment contract, where the employee is either dismissed before the expiration period of a fixed contract; without being given the agreed notice; or where there is no notice period, without being given reasonable notice or the statutory minimum notice, whichever is longer; or the employer did not have justifiable reasons for terminating the contract.

Although an employer is generally obliged to give notice prior to termination, an employee who is dismissed summarily (without notice) for serious misconduct, disobedience to lawful orders, negligence, or incompetence will not be able to succeed in an action for wrongful dismissal. Let’s look at serious misconduct.

The Act at section 133 says:
“133.— (1) An employer is entitled to dismiss, summarily without notice, an employee who is guilty of serious misconduct of such a nature that it would be unreasonable to require the employer to continue the employment relationship.”

“(3) The serious misconduct referred to in subsection (1) is restricted to conduct which is directly related to the employment relationship or has a detrimental effect on the business of the employer or the work relationship.”

It also outlines what amounts to serious misconduct:

“(2) Serious misconduct includes but is not limited to —
(d) refusing to follow health and safety measures instituted at work thereby endangering the health and safety of employees or members of the public.”

It is quite plausible that a Court could find that the refusal to follow a Covid-19 vaccine policy at work has a detrimental effect on the business of the employer and/or the work relationship and the refusal to follow same amounts to serious misconduct. Businesses which have experienced Covid -19 outbreaks have suffered (1) the tragic and avoidable loss of life of employees (2) interruption and even halt of business activities (3) a negative stigma being attached to the business place and (4) resulting losses to revenue. Just think of how many times you heard of businesses being closed for deep cleaning and your reaction when you heard that news.

This section of the Act also has not been tested by any Court in relation to Covid-19. However, for a Court to find that a termination on the basis of the refusal to follow a Covid-19 vaccine policy by a healthy person amounted to wrongful dismissal, it would also need to find that the refusal to follow that policy did not endanger the health and safety of the employees of the business or of members of the public. Again, in my opinion, the weight of the accepted medical evidence seems not to support that conclusion. As such, it appears likely that claims for wrongful dismissal after a termination for refusal to follow a workplace’s vaccine policy would generally fail if the employer terminated the employee after following the appropriate natural justice procedures.

The Constitution

Of course, it is open to anyone to challenge the Act, or any part thereof, on the basis that it is discriminatory and as such contravenes the Constitution of Saint Lucia (“the Constitution”). Such an argument will however, in my opinion, be difficult to mount, as the Constitution at Section 13 (5) says:

“Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) [the section prohibiting Discrimination] to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to sex, race, place of origin, political opinions, colour or creed) to be required of any person who is appointed to or to act in any office or employment.”

So, will I be fired for not taking the Vaccine?

Probably not.

Employers know that a heavy-handed approach is never the way to engender great working relationships with employees or the general public for that matter.

It is clear that some have legitimate reasons for not taking the Covid-19 vaccine. However, in certain fields of work, a Court may very well find that those closer in proximity to the pandemic, would necessarily need to be those more protected from it and the refusal to follow the health and safety measures of their workplace would be just grounds for termination. Just imagine a scenario where firemen refused to wear personal protective equipment.

Conversely, employees who are not required to be in office or are not required to be in close proximity to others may successfully challenge a firing based on their refusal to follow a vaccine policy put in place by their employer. This is because they would not likely be endangering anyone at their workplace and can effectively carry out their duties with minimal risk to themselves, their colleagues, the customers and the business. Of course, persons with health issues which make it medically unsafe to take the vaccine would also likely be able to successfully challenge a firing based on their refusal to follow a vaccine policy imposed by their workplace.

Employers will therefore likely employ a measured and reasonable approach to their vaccine policy. It is clear that one size does not fit all and nuance and tact need to be employed. However, it is also equally clear that the law contemplates that one’s individual approach to their personal health cannot be an approach that jeopardises the health and safety of others.

Rights are not, and have never been, absolute.

Indeed, as far back as 1905 this very same mandatory vaccine debate was brought before the Supreme Court of America in relation to smallpox in the case of Jacobson v Massachusetts. The Court was asked to determine whether Massachusetts law which mandated vaccines was inconsistent with the right to be protected against unlawful deprivation of liberty under the Constitution of the United States. The reasoning of the Court could be best captured in the following quote:

“[Liberty] does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint… Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy….The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community…There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Conclusion

I cannot, and do not purport to, tell anyone what to do. I am not a medical doctor and this is not medical advice.

However, from a legal standpoint, much in the same way a person can choose to make medical decisions as they deem best for themselves, it appears that an employer is empowered by law to make decisions necessary for the protection of the health and safety of its employees, its customers and its business.

I encourage all to stay safe and to continue to protect themselves and their loved ones.

Peter A. H. Marshall
Attorney at Law

Disclaimer: This article is for general information purposes only. It is not, nor should it be construed or relied on as, individual legal (or medical) advice.

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